Elizabeth Maruma Mrema 1 and Tomkeen Onyambu Mobegi 2
5 Categories of MEA compliance mechanisms
5.4 Dispute resolution procedures
Most MEAs have adopted dispute resolution procedures.222 The procedures are ‘ma-nagerial’ and ‘sanction-oriented’ measures modeled on the provision of the Charter of the United Nations that ‘all Members States shall settle their international dis-putes by peaceful means in such a manner that international peace and security, and
222 Konrad von Moltke, Whither MEAs?: The Role of International Environmental Management in the Trade and Environment Agenda (The International Institute for Sustainable Development (IISD), 2001), avail-able at <https://www.iisd.org/pdf/trade_whither_meas.pdf> (visited 30 April 2017) at 44.
justice, is not endangered’.223 While this is the case, creating a binding or widely ac-cepted MEA dispute settlement procedure is difficult because all MEAs are consent and compromise based instruments, which are meant to serve the interests of the Parties with minimal coercion.224
Dispute resolution procedures can be mandatory or optional. They vary from one MEA to another. Even in clustered agreements, the existing procedures have not ac-quired an across-the-board status. The mechanisms range from simple provisions for Parties to peacefully solve their disputes at the bilateral level to complex compulsory third-party dispute resolution procedures. The final dispute resolution measures in almost all MEAs are sanction-oriented measures. These measures are applied only when the dispute arises from a Party’s lack of willingness to comply with its inter-national commitments and it has been comprehensively determined that no other measure will be effective.
The existing MEAs’ dispute resolution mechanisms consist of progressive steps, categorized as follows: bilateral negotiation (diplomatic and cooperative in nature);
mediation (diplomatic and cooperative in nature); conciliation (can be voluntary or compulsory, but largely diplomatic and cooperative in nature); arbitration (voluntary, quasi-cohesive but legally binding); and judicial settlement (coercive and legally bind-ing but can only be implemented as a last resort, and thus far has hardly been used by Parties). These procedures do not, however, have a uniform application across-the-board amongst all the MEAs. The application varies from one MEA to another, based on the specific provisions of the agreement and the nature of the dispute. For example, CITES and the Migratory Species Convention require Parties to settle their disputes through negotiation and, where negotiations fail, these Conventions make provision for the dispute to be voluntarily submitted to the Permanent Court of Arbitration.225 The Law of the Sea Convention, on the other hand, has binding third-party dispute resolution procedures, including compulsory binding arbitration for specific disputes, such as disputes concerning the sea bed.226 In this regard, the Conference or Meeting of the Parties may adopt procedures to govern the arbitration process.
Across all environmental agreements, the arbitration procedure is only invoked when bilateral negotiations fail. The conciliation procedure is also invoked when negotiation fails, but only if one of the parties to the dispute requests conciliation and the other party accepts the invitation. Parties rarely submit to binding judicial settlement because of its adversarial, coercive, binding and compelling nature. There is thus a widespread preference for the voluntary, less adversarial and cooperative procedures, which are often tied with other non-compliance response procedures.
223 Article 2(4) of the Charter of the United Nations, 26 June 1945, available at <http://www.un.org/en/
documents/charter/index.shtml>
224 Guzman, ‘A Compliance Based’, supra note 25, at 1932.
225 Article XVIII of the CITES.
226 Article 287 of the Law of the Sea Convention and Annex V on Conciliation and VII on Arbitration.
In addition, judicial settlement is expensive and time consuming, and when the judicial process is not well managed, it can damage the political and economic rela-tionships between the concerned Parties and their partners.
Given that most MEAs manage and settle disputes within the existing compliance and non-compliance procedures, use of dispute resolution procedures, and disputes themselves, have been widely avoided. In certain instances where a Party has per-sistently and willfully failed to comply with an MEA, the various cooperative, dis-pute-solving non-compliance procedures have proven effective. For example, across all MEAs, the exchange and transfer of information has enabled Parties to learn and borrow ideas for tackling non-compliance, thus avoiding possible disputes.
Furthermore, international environmental principles, including, inter alia, those ar-ticulated in the Stockholm Declaration227 and the Rio Declaration on Environment and Development,228 that require dissemination of prior information and notifica-tion;229 taking of precautionary measures, including environmental impact assess-ment, to prevent and control transboundary environmental damage;230 undertaking of consultations and obtaining of consent before conducting activities likely to cause harm to the environment;231 transfer of financial and technological assistance;232 recognition of polluters’ liability and prevention of distortion of international trade and investment;233 incorporation of environmental safeguards into development
227 Para 6 of the Stockholm Declaration (Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972, UN Doc. A/CONF.48/14/Rev.1 (1973), 11 International Legal Materials (1972) 1416): ‘To defend and improve the human environment for present and future gener-ations has become an imperative goal for mankind- a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and of worldwide economic and social develop-ment.’
228 Principle 26 of the Rio Declaration (UN Declaration on Environment and Development, Rio de Janeiro, 14 June 1992, UN Doc. A/CONF.151/5/Rev.1 (1992), 31 International Legal Materials (1992) 876):
‘States shall resolve all their environmental disputes peacefully and by appropriate means in accordance with the Charter of the United Nations.’
229 Rio Declaration, Principle 18: ‘States shall immediately notify other States of any emergencies that are likely to produce sudden harmful effects on the environment of those States.’
230 Rio Declaration, Principle 15: ‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’ See also Principle 2: ‘States have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.’
231 Rio Declaration, Principle 19: ‘States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmen-tal effect and shall consult with those States at an early stage and in good faith.’
232 Stockholm Declaration, Principle 9: ‘Environmental deficiencies generated by the conditions of un-der-development…pose grave problems and can best be remedied by accelerated development through the transfer of substantial quantities of financial and technological assistance as a supplement to the domestic effort of the developing countries and such timely assistance as may be required.’
233 Rio Declaration, Principle 16: ‘…promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.’
planning;234 respect for basic human rights;235 compensation for the victims of pol-lution;236 bilateral and multilateral cooperation in the control, prevention, reduction and elimination of adverse environmental effects;237 and elimination and control of the use of certain weapons in times of conflict and warfare238 have also contributed to minimizing environmental disputes and conflicts.
Finally, emerging MEA practices − such as synergies and cooperation, the develop-ment of individual and bilateral procedures for handling disputes, and the enhance-ment of managerial approaches to non-compliance − have resulted in fewer disputes and rare reliance on institution-based coercive dispute resolution processes.