Dispute Resolution Mechanisms under Multilateral Environmental Agreements
By Lauriane Eudeline
In her book “Advanced Introduction to International Environmental Law[1] Ellen Hey comments on dispute settlement mechanisms available in Environmental Law. According to article 33 of the United Nations Charter,[2] which also applies to inter-state environmental disputes, states can settle their dispute through any peaceful means of their choice, such as negotiation, mediation, conciliation, arbitration, or judicial settlement. Consequently, states must find a way to resolve their environmental disputes but remain free to choose the procedure.
Drawbacks of judicial procedures when applied to inter-state environmental disputes
Ellen Hey describes a few drawbacks when it comes to inter-state environmental disputes settled by judicial procedures. They usually occur after environmental degradation took place. Additionally, many actors, such as groups and individuals facing environmental degradation, international organizations, and private actors, cannot be involved in inter-state judicial dispute settlement procedures.
Developments in environmental law
International environmental law developed to tackle these drawbacks. Nowadays, there are numerous Multilateral Environmental Agreements (hereafter referred to as MEAs). While older MEAs specified that disputes between parties had to be solved through negotiations, and even arbitration at the Permanent Court of Arbitration in case the dispute was still not settled; they now include that states should engage in compulsory conciliation if the parties do not agree on any other means. Additionally, the newest MEAs also include “state-triggered non-confrontational compliance mechanisms” in which third parties can have a role regarding the issue at stake. However, it is usually international development banks which tackle issues brought by individuals or groups regarding potential non-compliance.
Compliance Mechanisms
As previously stated, International Development Banks developed accountability mechanisms. Regarding some of the newest MEAs and their protocols, they only contain a clause directing states parties to establish a compliance mechanism, but this is not yet an obligation. This is the case for the Rotterdam Convention which objective is to “promote shared responsibility and cooperative efforts among Parties in the international trade of certain hazardous chemicals to protect human health and the environment from potential harm."[3] However, Compliance mechanisms have been established and are part of the Kyoto Protocol. Its main objective is the reduction of emission of carbon dioxide and greenhouse gases at the international level.[4]
The Role of Compliance Committees
Compliance Committees have to assess compliance with the instrument adopted by reviewing general compliance issues through reports submitted by states parties and by reviewing potential claims submitted, which concerns non-compliance. Claims of non-compliance can be submitted either by a state party himself concerning its own compliance or by another state party concerning state compliance. Findings from Compliance Committees are not legally binding.
Conclusion
MEAs have existed since 1857.[5] There are now hundreds of MEAs protecting biological diversity, chemicals and waste, climate and atmosphere, land and agriculture, and marine and freshwater. [6] States have all the legal tools to tackle environmental issues. It is now for them to move forward and ensure that Compliance Committees’ findings become binding and ensure the establishment of Compliance Mechanisms for every single MEAs. Climate Change is a pressing issue, and therefore, strict compliance is needed if we want to meet the Paris agreement and UN’s aim of limiting global warming to two degrees Celsius by 2100.
[1]," Ellen Hey, “Advanced Introduction to Environmental Law."
[2] UN Charter, Article 33.
[3] Rotterdam Convention, on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, article 1.
[4] Kyoto Protocol.
[5] Rakhyun E.Kim , ‘The emergent network structure of the multilateral environmental agreement system’ (2013) Global Environmental Change 23.
[6] InforMEA, ‘Access Information on Multilateral Environmental Agreements’ <https://www.informea.org/en >.