Environmental dispute settlement within the United Nations system

by

Peter A. Murray
OECS 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

1
University of Joensuu, 2007. Multilateral Environmental Agreement Negotiator’s Handbook, Second edition 2007,
University of Joensuu – UNEP Course Series 5, Joensuu. p 2-22.
2
1899 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 Convention
4
The 1907 Convention, Part I, Article 1
5
Ibid. Part II, Article 2
6
Ibid. Part III, Article 9
7
Ibid. Part IV, Article 37
8
Ibid. Part IV, Article 38
9
Charter of the United Nations. Article 33(1)
10
Kiss, A., 2005, Introduction to International Environmental Law; 2nd Revised Edition, UNITAR, Geneva
Switzerland, p.63
11
The 1907 Convention, Part III, Article 9
12
Ibid. Part III, Article 35; parentheses mine. See also Kiss, A., 2005, p.63

1
 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.63
14
The 1907 Convention, Part II, Article 4
15
Kiss, 2005, p.64
16
Kiss, 2005, p.64
17
The 1907 Convention, Part IV, Article 37
18
Compendium of Judicial Decisions on matters related to the environment. International Decisions. Volume 1.
December 1998. p v.
19
Kiss, 2005, p.64
20
This can pose problems since in many cases private individuals are involved either as culprits or seekers after
redress from damages
21
Charter of the United Nations, Article 95
22
The 1907 Convention, Article 56
23
Charter of the United Nations, Article 52
24
Kiss, 2005, p.64

2
 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 bodies

United Nations General Assembly
6. 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 4-5
27
Sand, P.H., 1997. The role of International Organisations in the Evolution of Environmental Law, UNITAR,
Geneva, Switzerland, p.27
28
Ibid. p. 24
29
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.

3
 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 Council
7. 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 mentioned 37 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 34
36
Ibid. Article 36(1)
37
c.f. Ibid. Article 33
38
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.

4
Secretary General
8. 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 Justice

9. 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 appeal 46. 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 Sea

10. 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 1
46
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

5
 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 Bank
12. 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 10-20
51
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 29
52
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 16
53
Ibid., p5-6, paragraph 17
54
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. 102
57
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]

6
 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 Body

14. 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 review 64.
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 35
61
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 17
65
Ibid. Article 22
66
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]).

7
 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 Mechanisms

16. 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
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

69
Mann and Apea, 2007. p 68.
70
1899 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 Convention
72
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 IV
78
The Aarhus Convention, Article 16(2)(b) and Annex II
79
Industrial Accident Convention Article 21(2(b) and Annex XIII
80
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.
8
 (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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9
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Figure 1

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