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COMPULSORY DISPUTE SETTLEMENT AND THE PROBLEMS OF MULTIPLE
FORA UNDER INTERNATIONAL ENVIRONMENTAL LAW
Teshager Worku Dagne
Abstract
With the increase in the common concerns and interests among states, the number of
treaties regulating their relations is also in the rise. This has been compounded with the
rapid proliferation of international courts and tribunals, posing the danger of a potential
conflict among these numerous fora. The problem becomes much more imminent when
the confrontation is between forums of mandatory jurisdiction, to which, the disputant
parties have conceded.
This article examines the situation as envisioned in the international environmental field
and suggests the possible remedy to resolve the problems raised. Accordingly, it is
divided in to three sections.
The first section states the backgrounds to the problem and explains the basic concepts of
common use through out the paper. It also provides the building blocks for the
consecutive discussions by making elaborations on the various dispute settlement systems
that may have impacts on the environmental field and hence, are subjects of discussion
through out the paper.
The second section elucidates the dangers that the existence of multiple fora in the
compulsory paradigm poses, by referring to actual cases that have figured in the
international courts and tribunals recently. In the last section, an attempt is made to
forward possible suggestions by drawing inferences from the approaches adopted by the
international courts and tribunals that have disposed claims reminiscent of the problems
addressed by the paper. The article ends up making conclusions and summarizing the
possible solutions.
1
1
Table of Contents
Titles Page
Abstract 1
Table of Contents 2
List of Abbreviations 3
1 Compulsory Settlement of Environmental Disputes 4
1.1 Introductory Background 4
1.2 International Environmental Disputes 4
1.3 Compulsory Dispute Settlement Mechanisms 6
1.4 Environmental Dispute resolution forums with compulsory jurisdiction 8
1.4.1 The International Court of Justice 9
1.4.2. The International Tribunal for the Law of the Sea (ITLOS) 10
1.4.3. The WTO Dispute Settlement System 10
1.4.4. Compulsory Dispute Settlement Mechanisms under MEAs 11
2. Plurality of Dispute Settlement Fora under International Environmental Law 15
2.1 Fragmented Dispute Settlement procedures with in the MEA regimes 16
2.2 The problems of fragmentation in inter disciplinary legal regimes 19
3 Approaches to Settling Disputes Involving Multiple Fora 21
3.1. The Self-Contained Regime Approach 23
3.2. The Harmonization Approach 24
3.3. Towards resolving the conflict in the MEAs context 28
Conclusions 36
2
2
List of Abbreviations
CCSBT-Convention on Conservation of Southern Bluefin Tuna
CTE-Committee on Trade and Environment
DSU-Dispute Settlement Understanding
EC-European Commission
ECJ-European Court of Justice
EU-European Union
ICJ-International Court of Justice
ILC-International Law Commission
ITLOS-International Tribunal on the Law of the Sea
LOS-Law of the Sea
MEA- Multilateral Environmental Agreement
MOX-Mixed Oxide Fuel
PCIJ-Permanent Court of International Justice
UN-United Nations
UNCLOS-United Nations Convention on the Law of the Sea
WTO-World Trade Organization
3
3
1 Compulsory Settlement of Environmental Disputes
1.1 Introductory background
As has been pronounced by the PCIJ in the advisory opinion on the status of Eastern
Carelia (1923), the fundamental legal principle underpinning the settlement of disputes
involving sovereign states is that “…no state can, without its consent, be compelled to
submit its disputes …to arbitration, or any other kind of pacific settlement”1. This is the
so-called “principle of consent”, a rule so “…well established in international law...” that
the Court felt no need to provide evidence of its existence, nor to elaborate on its precise
content2.
Yet, over the past two decades, theory and practice in relation to the compulsory exercise
of international jurisdiction, where, consent is largely form because it is either implicit in
the ratification of treaties creating certain international organizations endowed with
adjudicative bodies, or is jurisprudentially bypassed and litigation is often undertaken
unilaterally, have increasingly grown up. This shift is visible, not only in the international
judicial fora, but even amongst the quasi-judicial and implementation control procedures,
as well in political processes, such as determination of legality by the UN Security
Council3.
1 Status of Eastern Carelia, (1923),Advisory Opinion, PCIJ ( Ser. B) No.5,27
2 Cesare P.R. Romano, From the consensual to the Compulsory Paradigm in the International
Adjudication: Elements for a Theory of Consent, (New York: New York University Public Law and Legal
Theory Working Papers, 2006), Online: Center on International Cooperation, <http://1sr.nellco. org/nyu
/plltwp/papers/20 >, 4 3 Ibid.5
4
4
Mean while, since the founding of the United Nations, the number of treaties and the
matters they address have expanded vastly. It is increasingly common to find the same
subjects addressed in complementary global, regional and bilateral treaties. Many of
these treaties contain provisions on the settlement of disputes regarding the interpretation
or application of that treaty itself. Some of these establish compulsory jurisdiction. These
circumstances suggest an increasing probability that a dispute will arise between states
under the substantive provisions of two complementary treaties with dispute settlement
clauses, both of which provide for compulsory system either in general or with respect to
that dispute. One area of international law where this trend is evolving is the
Environmental law regime.
This article tries to explore the relationship between the compulsory dispute settlement
procedures contained in MEAs vis-à-vis the compulsory jurisdiction of other
international fora as incorporated in complimentary and related treaties and agreements.
In particular, it will try to examine the situation in which an environmental dispute
involving a country conceding to multiples of compulsory dispute settlement fora
touching up on the various aspects of a single dispute is dealt with.
Before hastening to analyzing the issue, however, it is necessary to define concepts of
significant usage in the paper, for; the exact contour of their notion can not be taken for
granted.
1.2 International Environmental Disputes
5
5
In a discussion of issues in this paper, what constitutes an environmental dispute is the
key question that should be addressed first. There are varieties of disputes that are
regarded as “international environmental dispute”,4 which by far, are too broad for the
purpose of this paper. Two endeavors, however, deserve an attention for the proper
understanding of the concept as employed in here.
The first attempt is by Richard Bilder in 1975 which defined an international
environmental dispute as:
“Any disagreement or conflict of views or interests between states relating
to the alteration, through human intervention, of natural environmental
systems.”5
This definition, however, is too generic as it does not distinguish between degradation
and improvement of the “natural environmental systems”, nor does it refer to the notion
of ecosystem which, nowadays, has become central to international discourse.
An other definition given in 1986 provides that:
“ An international environmental dispute exists whenever there is a conflict of
interest between two or more states (or persons within those states) concerning the
4 In 1986, Arthur Westing, an eminent American social scientist, compiled a list of the twentieth century’s
major international conflicts which, in his opinion, involved environmental factors. Among the lists were
“the two world wars, some decolonization conflicts (e. g. Algerian War of Independence) and some civil
and succession wars (e.g. Nigerian civil war) or the Western Sahara Revolt. According to him , the
common denominator of all these conflicts is that natural resources ( e.g. minerals, fuels, fish stocks,
agricultural crops and, ultimately , the land itself ) were, if not the objective of the contending parties, at
least at stake in the conflict.” A.H. Westing, Environmental Factors in Strategic Policy and Action : An
Overview, (1986),cited in Cesare P.R. Romano, “The Peaceful Settlement of International Environmental
Disputes : A Pragmatic Approach”, (2000) 56 International Environmental Law & Policy Series, 3-20 5 R.B. Bilder, “The Settlement of Disputes in the Field of International law of the Environment”, (1975)
144 Hague Academy of International Law, 141
6
6
alteration and condition ( either qualitatively or quantitatively) of the physical
environment”6
This definition again, doesn’t suit this paper, first because; by referring to “persons with
in those states” it enlarges the domain of international environmental disputes to the so-
called transnational disputes. Second, it speaks about alterations in general, with out
qualification. Third, it doesn’t specify the source of the alteration.
The satisfactory definition for the proper understanding of the term as employed in this
paper is the one given by P.R. Romano, which defined it as:
A conflict of views or of interest between two or more states, taking the form of
specific opposing claims and relating to an anthropogenic alteration of an
ecosystem, having detrimental effect on human society and leading to
environmental scarcity of natural resources.7
This definition is hinged up on the concept of “ecosystem” rather than “environment”, a
larger circle with in which the environment forms part,8 but through out this paper, we
will resort to the term “environment” as representing the concept in this broad context.
Therefore, we will only be dealing with disputes which meet the test of the above
definition.
1.3 Compulsory Dispute Settlement Mechanism
6 C.A Cooper, “ The Management of International Environmental Disputes in the Context of Canada-
United States Relations :A survey and Evaluation of Techniques and Mechanisms”, (1986) 24 Can. Y.I.L.,
243 7 Supra note 2 at 29
8 An “ecosystem” is “an ecological community together with its environment, functioning as a unit”
Wikipedia: the free encyclopedia S.V. “Environment” , Online: < http://en.wikipedia.org/wiki> see also
supra note 4, 25
7
7
Dispute settlement mechanisms are procedures laid down to deal with disputes between
two (or more) countries about their obligations under particular international agreements.
These procedures are listed under article 33 of the UN charter and are regarded as
peaceful means to which states have to adhere to in settling their disputes9 . In most of the
cases, some kind of tribunal or court is established to hear the case and reach conclusions,
though there is also a preliminary phase where the parties in dispute are encouraged to
reach an amicable settlement .These procedures of dispute settlement are clearly most
appropriate where the breach of the agreement causes measurable harm to a country (e.g.
loss of market access in a trade agreement ) and where the case revolves around the
interpretation or application of general rules and principles10
.
The procedures could be categorized in to either consensual or compulsory. The dispute
settlement procedure is consensual if the joint agreement of the disputants is required for
it to be instigated. Under the compulsory system, however, consent to the procedure is a
requirement of a state’s membership to an international organization or legal regime and
hence, the process is typically initiated by unilateral submission11
. In this sense,
compulsory dispute settlement mechanisms resemble national courts as in both cases, the
plaintiff (applicant at the international level) need not obtain the respondent’s consent to
seize the court.
9 “The parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful
means of their own choice”. Charter of the United Nations, 26 June 1945, Can. T.S., 1945, No.7, art.33.1 10
Dunkan Brack, “International Environmental Disputes: International forums for non-compliance and
dispute settlement in environment-related cases, Energy and Environmental program”, (March 2001),
Online: Royal Institute of International Affairs, Department of Environment, Transport and Regions
<www.riia.org/Research/eep/eep.html> 11
Supra note 2, 5
8
8
Compulsory settlement systems may be adjudicative or non- adjudicative in their nature.
The adjudicative system involves the rendering of binding decisions by an arbitral or
judicial body while in the non-adjudicative system (usually referred to as diplomatic
means of settlement), the parties to the dispute retain control over the outcome in so far
as they may accept or reject a proposed settlement.
One must distinguish dispute settlement procedures from the procedure most common in
MEAs namely, non-compliance procedures. The latter are invoked when a party’s failure
to comply with the obligations set out in the MEA damages the integrity and success of
the regime itself, rather than causing direct and measurable harm to any single party, in
which case, the party would instigate the dispute settlement procedure12
.Cases of non-
compliance are usually reported by the party in respect of itself, by any other party or by
the MEA’s secretariat.
Therefore, whenever a mention is made to the compulsory system of dispute settlement in
this paper, it is inclusive of the adjudicative and non-adjudicative systems explained
above, in their compulsory nature.
1.4 Environmental Dispute resolution forums with compulsory jurisdiction
12
Supra note 4, 3
9
9
Currently, though the international court of general jurisdiction, the ICJ, has had the
opportunity to consider cases with environmental implications under its statute, there is
no specialized international environmental court. Conversely, specialized dispute
settlement bodies established in environmental agreements and international trade laws
have generated an important case-law on disputes involving environmental aspects. In
this topic, we will have a cursory view of those systems exercising compulsory
jurisdiction in addressing international environmental disputes. It is not with in the scope
of this paper to exhaustively deal with the various aspects of each of the systems dealing
with environmental disputes. However, with a view to accentuate the peculiarities of
different fora exercising compulsory jurisdiction over international disputes, the
discussion will focus on fundamental aspects of the systems relevant to the writing.
1.4.1 The International Court of Justice
The ICJ is a standing court of the UN, established in 1945 along with the UN itself as a
successor to the PCIJ. It has jurisdiction in all cases referred to it by the consent of the
disputant parties and may also be invested with jurisdiction through treaties and
conventions in force, one of which is the UN Charter 13
. According to the so-called
optional clause under Article 36.2, a state party to the statute can choose to submit to the
court’s compulsory jurisdiction disputes in relation to any other state which does the
same. This means that no previous agreement is needed in order for the court to have
jurisdiction to try a case between two parties which have both made a declaration under
Article 36.2 – the court will be competent to handle a case (declare admissible and take
13
The Statute of the ICJ, 26 June 1945, 59 Stat. 1055, 33 U.N.T.S. 993, art. 36.1
10
10
binding decisions) brought to it by only one of the parties. Generally speaking, a state is
subject to its jurisdiction under the following circumstances; if it is subject to a
multilateral agreement which stipulates it, if it appears before the court without objecting
to it exercising jurisdiction in the case in question, or if it makes a unilateral declaration
recognizing its jurisdiction14
.
Though the ICJ is a court of general jurisdiction, it has full competence over all aspects
of international environmental law, and a number of MEAs specifically stipulate its
jurisdiction15
. In 1993, the ICJ established a specialized chamber for environmental cases
under Article 26(1) of its statute. The chamber has the purpose to serve as a special forum
for environmental disputes though no case has to this date been brought to it.
1.4.2. The International Tribunal for the Law of the Sea (ITLOS)
The UN Convention for the Law of the Sea was agreed, after protracted negotiations, in
1982 and entered in to force ten years later. Part 15 of the convention deals with the
settlement of disputes concerning the interpretation or application of UNCLOS. It
submits disputes arising under the Convention with respect to the marine environment
and the marine living resources to a compulsory third-party dispute settlement by
providing several options for the state parties, including conciliation, arbitration and
14
Supra note 10,4 15
ICJ cases with environmental aspects include, e.g. , Nuclear Tests ( Australia V. France and New
Zealand V. France ), Judgment, [1974] ICJ Reports 253 and 457;Certain Phosphate lands in Nauru (Nauru
V. Australia), Preliminary Objections, Judgment , [1992],ICJ Reports 240; Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, [1996] ICJ Reports 226; Gabcikovo –Nagymaros Project
(Hungary/Slovakia), Judgment, [1997] ICJ Reports 7 ; and Fisheries Jurisdiction (Spain V. Canada),
Judgment, [1998]ICJ Reports, 432
11
11
recourse to the ICJ and ITLOS16
.The choice of forum will depend on prior declarations
made by the parties, and when no common choice is agreed then annex 7 arbitration is
the default position 17
.The court or tribunal so chosen has jurisdiction over any dispute
concerning the interpretation or application of UNCLOS or of any other international
agreement related to the purpose of UNCLOS where the parties so agree, subject to a
number of exceptions set out in Section 3 of part 1518
.
1.4.3. The WTO Dispute Settlement System
In the field of trade law, the WTO DSU establishes a system of compulsory and binding
adjudication of disputes arising under WTO agreements. WTO system’s significance in
this paper derives from the fact that it has allowed the review of cases concerning the
compatibility of environmental measures with trade obligations.19
1.4.4. Compulsory Dispute Settlement Mechanisms under MEAs
MEAs have incorporated various dispute settlement mechanisms, but most of them have
not evolved much in the field as in the majority of cases, environmental disputes end up
in negotiations. Most of the MEAs that contain dispute settlement provisions reflect, to a
greater or lesser degree, the methods for peaceful settlement of disputes listed in article
33 of the UN Charter20
.A closer scrutiny of these procedures reveals several distinctive
16
United Nations Convention on the Law of the Sea, (10 December 1982) Article 286-288, Online: UNTS
3, <http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm.> 17
Ibid. 18
Ibid. , Article 288 19
Philippe Cullet & Alix Gowlland-Gualtieri, Key Materials in International Environmental Law,
(London: Ashgate Publishing Company, 2004), 587 20
Supra note 9
12
12
features. One among these is that MEAs of the last decade are characterized by an
increased recourse to compulsory conciliation21
.
Conciliation refers to the process of dispute settlement whereby the parties agree to
utilize the services of a conciliator, who then meets with them separately in an attempt to
resolve their differences. Many authors distinguish between “mediation” and
“conciliation,” but there is no universal consensus as to the precise definition of each of
these terms. The 1949 Revised General Act for Pacific Settlement of International
Disputes defines the task of a conciliation commission as follows:
“…to elucidate the questions in dispute, to collect with that object all necessary
information by means of enquiry or otherwise, and to endeavor to bring the
parties to an agreement. It may, after the case has been examined, inform the
parties of the terms of settlement which seem suitable to it, and lay down the
period with in which they are to make their decision.”22
In elaborating this, P.R. Romano asserts that conciliation combines the basic features of
both inquiry (i.e. the ascertainment of facts) and mediation (i.e. the endeavor to bring the
parties in to an agreement); in its most structured expressions, it might even resemble
judicial means but for the fact that its outcome is not binding23
.However, unlike what
occurs in mediation, the third party assumes a more formal and detached role, often
investigating the details of the dispute.
21
Supra note 5, 43 22
The Revised General Act for the pacific settlement of International Disputes, 28 April 1949(1949)71
UNTS, art.15.1. 23
Supra note 4, 60
13
13
Although in no sense binding, the recommendatory award of a conciliation body can have
a relevant impact on the dispute. Because it provides the parties with a thorough
ascertainment of facts by fact finding, a fundamental element of judicial means, and an
articulated proposal on how to settle the dispute by preserving the fundamental interests
of all stake-holders, conciliation is, out of all diplomatic means, the one which probably
has been most often included in MEAs24
. It has significance in that, by radically changing
the bargaining positions of the parties, it exerts heavy pressure on them to comply.
Currently, two major trends are pervading through MEAs as regards conciliation. These
are the unilateral triggering of conciliation procedures (i.e. obligatory conciliation) and
their use as a subsidiary means when the parties fail to reach agreement on more formal
and binding procedures ( i.e. adjudicative means ).25
In the existence of several settlement fora for international environmental disputes under
the compulsory paradigm, it is likely that a certain dispute may be the subject of any two
or more of these jurisdictions. What would happen when a dispute arises on multiple
international legal regimes, each endowed with own dispute settlement procedures and
bodies, touching up on different aspects of the same dispute? Which procedure and
bodies will be used?
24
See, the 1982 UN Convention on the Law of the Sea,Art.297,The 1963 Optional Protocol Concerning the
Compulsory Settlement of Disputes of the Vienna Convention on Civil Liability for Nuclear Damage,(28)
The 1969 International Convention on Intervention on the High Seas in Cases of Oil Pollution Casualties,
(41), Annex , Chapter I, The 1985 Vienna Convention for the Protection of the Ozone Layer, (78),
Art.11(4), The 1992 Convention on the Biological Diversity , (106), Art. 27(4) and annex II, part 2, The
1992 Framework Convention on Climate Change ,(105) Art.14(5),The 1994 Convention to Combat
Desertification,(120), Art.28(6) 25
Supra note 4, 60
14
14
If this concerns consensual procedures, the answer is simple as the parties can submit it to
whatever they can agree to use. But in the compulsory paradigms described above, where
consent to jurisdiction is locked-in, it becomes much complex. I will try to illustrate in
the following section that this is a real problem, extending to various legal regimes, both
global and regional, the focus being on the global aspect of the environmental subject
matter.
2. Plurality of Dispute Settlement fora under International Environmental Law
One of the most striking features of recent international law is the enormous expansion
and transformation of the international judiciary. In the last decade of the 20th century,
almost a dozen of international judicial bodies have become active. The expansion and
transformation of international judicial bodies is the consequence of an equally
tumultuous amplification of the number and ambit of institutions consecrated to ensure
compliance with international legal obligations and settlement of disputes arising there
from26
.
At the same time, the number of states accepting the jurisdiction of these bodies, either
implicitly or, when necessary, explicitly, has increased. As explained under the first
chapter, most of these bodies have binding and compulsory dispute settlement
procedures. The result is that states that have a progressive international judicial policy,
and thus have submitted to a large and varied number of judicial and qausi-judicial
bodies, may be exposed to litigation in different fora at any given time. In these
26
Cesare P.R. Romano, “The Proliferation of International Tribunals: Piecing together the Puzzle” (1999)
31N.Y.U.J. Int’l L. &Pol., 709, Online: Project on International Courts and Tribunal < http://www.pict-
pcti.org/publications/articles_paprs.html.>
15
15
circumstances, the choice of the battle ground is usually left to the tactical considerations
of the applicant.
In this section, we will look at the situation as it exists in the environmental regime. The
purpose is to examine the circumstances where disputes arising over the interpretation or
application of MEAs are dealt with in fragmented procedures of dispute resolution. This
kind of fragmented procedure may exist either with in the same legal regime (MEAs
regime), or among different regimes in different disciplines, dealing with different
aspects of the same dispute. We will be looking at these situations independently.
2.2 Fragmented Dispute Settlement procedures with in the MEA regimes
Most binding environmental treaties contain more or less detailed provisions on the
settlement of disputes. The scope of dispute settlement mechanisms is, as indicated
above, limited to disagreements arising from the interpretation or application of the
MEA. The majority of MEAs do not oblige parties to solve their disputes through binding
adjudication processes (such as that of the ICJ); although in many cases, parties can set
their preferences up on ratification of the agreement.
Given that dispute resolution procedures in MEAs tend to comprise mainly compulsory
conciliation, as indicated under Chapter one, potential linkages are feasible in respect of
common dispute resolution bodies. More specifically, state parties to a certain MEA (that
has adopted a compulsory conciliation system) might also have filed an open-ended
16
16
optional declaration accepting the ICJ jurisdiction under Article 36(2) of the Court’s
statute27
. In such instances, a dispute arising amongst these states over the interpretation
or application of such MEA may be subjected to the compulsory jurisdiction of the court.
More over, it is common to find that the same subjects of a MEA are addressed in
complementary global, regional and bilateral treaties28
. Many of these treaties contain
provisions on the settlement of disputes regarding the interpretation or application of that
treaty itself. These provisions might have adopted any of the compulsory jurisdictions
discussed above. This circumstance suggests an increasing probability that a dispute will
arise between states under the substantive provisions of two complementary treaties with
dispute settlement clauses, both of which provide for compulsory settlement system
either in general or with respect to that dispute.
In all these circumstances, the choice of the battle ground is usually left to the tactical
considerations of the applicant. What would happen if such a dispute is submitted to the
compulsory conciliation of a particular MEA and an other compulsory system of dispute
settlement, or else, while initiated in one forum, the jurisdiction is objected by the other
state as being governed by an other procedure?
27
Currently, there are about fifty states accepting the ICJ jurisdiction, Supra note 10
28 Complementary treaties are agreements that are more limited in their substantive or geographic scope
than a specific MEA. For example, the Bamako Convention on the ban of the Import into Africa and the
Control of Trans boundary Movement of Hazardous Wastes within Africa and Convention on the
Conservation and Management of Fishery Resources in the South-East Atlantic Ocean are complementary treaties to the Basel Convention on the Control of Trans boundary Movements of Hazardous Wastes and
Their Disposal and Convention on the Law of the Sea respectively.
17
17
In the general international law arena, several disputes may be raised to illustrate that this
is a real problem. In the environmental field, however, the Southern Bluefin Tuna case
pitting Japan against Australia and New Zealand is one specific example. In 1993, the
three states concluded a convention over the conservation and management of southern
bluefin tuna stocks. The agreement contains a typical consensual dispute settlement
clause that is found in many environmental agreements in stating that in case of dispute,
“…with the consent in each of all parties to the dispute, [it will] be referred for settlement
to the International Court of Justice or to arbitration”29
.
As often happens, the parties could not agree to have the dispute referred to the ICJ or
arbitration. However, all three states were also parties to the LOS convention. All of them
have also filed an optional declaration accepting the jurisdiction of the ICJ under Article
36(2) of the court’s statute. Accordingly, Australia and New Zealand could have brought
the dispute concerning Japan’s unilateral actions to at least three fora: an ad hoc Arbitral
Tribunal constituted under Article 16 of the 1993 Convention, the ICJ, or the dispute
settlement procedures of the UNCLOS30
.
Under the LOS convention, states have a general duty to peacefully settle disputes under
the Convention by any means they can agree up on. However, if settlement is not
reached, and the parties have explicitly excluded no other procedure, either party is
entitled to trigger the compulsory dispute settlement procedure.
29
Convention for the Conservation of the Southern Bluefin Tuna, Aust.-N.Z-Japan,10 May 1993,1819
U.N.T.S. 359, art.16 30
States are always free to choose whatever peaceful method they want to settle disputes, including
diplomatic means. The principle of the free choice of means is enshrined in Article 33 of the UN Charter.
18
18
As Australia and New Zealand instigated the LOS procedure, Japan made a preliminary
objection on the ground that the parties have already agreed to submit the dispute to the
settlement procedure under the 1993 convention. The question arose as to which
procedure has jurisdiction over the dispute; the one under UNCLOS providing for
unilateral activation (i.e. the compulsory paradigm), or the procedure in the 1993
Convention providing for agreed up on activation (i.e. the consensual paradigm)?
Two separate adjudicative bodies looked in to the question and reached antithetical
conclusions. First, the International Tribunal for the Law of the Sea (ITLOS) considered
the matter while deciding whether it could order provisional measures pending
constitution of an annex 7 ad hoc Arbitral Tribunal 31
.It found that the fact that the 1993
Convention applied to the parties did not preclude them from recourse to the dispute
settlement procedures of the LOS convention. According to the tribunal, the LOS
Convention would be overridden only in the event that the parties could agree to submit
the dispute to arbitration under the 1993 convention.
The ad hoc Arbitral tribunal constituted thereafter found differently. It concluded that it
lacked jurisdiction and dismissed the case holding that the absence of an express
exclusion of any procedure is not decisive for the purpose of the UNCLOS. According to
the ad hoc tribunal, the fact that Article 16 makes resort to binding settlement conditional
31
Southern Bluefin Tuna cases (N.Z. V. Japan ; Austl. V.Japan), (1999), provisional measures 38 I.L.M.
1624 (ITLOS)
19
19
up on agreement makes it clear that it was the intent of the parties to remove proceedings
from the reach of compulsory procedures of the LOS Convention32
.
As regards these two decisions, the question of paramount importance for the purpose of
this paper is; how would the situation be dealt with had the 1993 convention incorporated
compulsory dispute settlement system? Would it make any difference if the procedure in
the UNCLOS had been a non-binding compulsory conciliation, as this is the typical
settlement procedure incorporated in most MEAs?
In the absence of jurisprudential hint on this specific issue, resort to the judicial practice
on disputes touching up on interdisciplinary legal regimes would yield some suggestions.
2.3 The problems of fragmentation in inter disciplinary legal regimes
With regard to certain disputes touching up on both aspects of trade and environment, the
procedures of compulsory dispute settlement incorporated under MEAs conflict with
those in the trade regime, specifically those of the WTO. A single dispute, or aspects
thereof, may involve issues that would appear to be of relevance to the dispute-
32
Southern Bluefin Tuna (N.Z. V Japan, Austl. V Japan), (2000) , Jurisdiction and Admissibility , 39 I.L.M.
1359 (Award of the Arbitral Tribunal)
20
20
settlement provisions of a MEA, while the same governmental actions also affect trade
and are thus WTO matters covered under Article 23 of the DSU.
An actual example of the problem in this regard has presented itself in the Swordfish
case33
. In this case, a dispute arose between the EU and Chile over the Chilean measure of
preventing the EC vessels from transshipping and/or landing their catches of highly
migratory species (such as swordfish) in Chilean ports .The EU filed an application to the
Chairman of the WTO Dispute Settlement Body for the establishment of a panel on the
ground that the Chilean measure violates Article 5 of the General Agreement on Tariffs
and Trade, which deals with freedom of transit, and GATT Article 11, dealing with
eliminating quantitative restrictions. When the EU obtained the establishment of a WTO
panel, Chile in turn, initiated proceedings before the International Tribunal for the Law of
the Sea, whose parent convention contains provisions relating to the conservation of
marine resources, on the ground that the EU has failed to cooperate with the coastal state
in ensuring the conservation of highly migratory species.
In January 2001, however, the EU and Chile reached a settlement providing limited
access for EU fishing boats to Chilean ports, scientific and technical co-operation on
conservation of swordfish stocks, and the establishment of a multilateral framework for
the conservation and management of swordfish in the Southeastern Pacific34
.
33
Chile-Measures Affecting Transit and Importation of Swordfish, (Mar.23, 2001) WTO Docs. WT/DS193,
Online: WTO <http://docsonline.wto.org/gen_search/asp>; Case Concerning the Conservation and
Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean ( Chile/European
Community), (2000) Case No. 7, ITLOS, Online : Internet Guide to International Fisheries Law
<http://www. intfish.net/cases/fisheries/swordfish/index.htm> 34
Ibid.
21
21
Had the Swordfish case not been resolved through negotiation, it would have best
illustrated the problem we are dealing with in this paper.
The problems of multiple international judicial fora in the environmental field have also
been demonstrated by the MOX plant dispute between Ireland and the United Kingdom.
Here, three dispute settlement procedures-the 1992 Convention for the Protection of the
Marine Environment of the North-East Atlantic (OSPAR), the UNCLOS, and the ECJ
were able to address aspects of the same disputes35
.In all the three cases, United Kingdom
could do nothing to oppose proceedings because it had given consent a priori when
ratifying the relevant conventions.
The MOX plant case demonstrates the increased overlap in the jurisdictions of
international courts and tribunals and the procedural possibilities and challenges that
ensue as a result. It entailed adverse implications in terms of time and resource
expenditures. It also sets the stage for the issuance of incompatible decisions which might
complicate the dispute rather than resolve it36
.
In all these circumstances, the confrontation was between the compulsory binding dispute
settlement systems incorporated under the environmental regime and the same procedure
incorporated in the trade regime. The question then remains to be answered: How would
35
Dispute concerning Access to Information under Article 9 of the OSPAR Convention (Ir. v. U.K.), (2003),
42 I.L.M. 1118, Online: Permanent Court of Arbitration, < http://www.pca-cpa.org/PDF/OSPAR%20-
%20Decision%20no2.pdf>; Dispute concerning the Mox plant, International Movements of Radioactive
Materials, and the Protection of the Marine environment of the Irish Sea (Ir. V. U.K. ), (2003),42 I.L.M.
1187; The Mox Plant Case ( Ir. V. U.K.), 2001 ,(Interim Measures),Case No. 10, ITLOS,
Online:<http://www.itlos.org/cgi-bin/cases/case_detail.pl?id=10&lang=en>; Action brought on 30 October
2003 by the Commission of the European Communities against Ireland, ( case C-459/03), (2004)OJ /C 7/39
, Online: Official Journal of European Union, <http://europe.eu.int/eur-
lex/lex/JOHtml.do?uri=OJ:C:2004:007:SOM:EN:HTML> 36
Yuval Shany, “The First Mox plant Award: The need to harmonize competing environmental regimes
and dispute settlement procedures” , (2004), 17 Leiden J. Int’l L., 815
22
22
the situation be dealt with had the conflict been between the compulsory conciliation
system of MEAs and the trade regime dispute settlement system? Again, no state practice
conveys a hint on this specific issue.
In the remaining part of the paper, I will try to answer these questions after going through
the approaches adopted by the courts and tribunals in dealing with the problems
illustrated above.
3. Approaches to settling Disputes Involving Multiple Fora
When confronted with the problems arising out of the multiplication of dispute
resolution procedures with compulsory jurisdiction, courts and tribunals have not
adopted a consistent and well developed approach. There are no agreements offering
solutions to the problems discussed. Falling back on customary international law, the
general principles, and the case law of international courts and tribunals, though points
to some clues, doesn’t help much either. How ever, a careful survey of the most recent
scholarly literature and international practice points to some possible antidotes. It is not
the purpose of the paper to examine all these suggestions towards resolving the
paradox. However, in search of a solution to the problem of convergence of jurisdiction
between the compulsory conciliation and other compulsory dispute resolution systems,
I will try to elaborate on the dominating conjectures as related to the decision of the
tribunals that have handled the cases.
In entertaining environmental disputes between states litigating simultaneously or
serially on essentially the same dispute in multiple fora, the bulk of scholarly writings
23
23
and texts are geared towards two approaches: the self-contained regime and the
harmonization approach. We will be dealing with each one of these.
3.2. The Self-Contained Regime Approach
The self-contained regime approach was one of the approaches adopted by some courts
and tribunals confronted with the problems arising out of the multiplication of
international dispute settlement fora.A “self- contained regime” is a subsystem of
international law intended to exclude the application of other legal consequences more or
less, totally37
.The study group on the fragmentation of international law established by
the ILC in 2002 has elaborated the concept of “self-contained regimes” as referring to a
“special set of secondary rules that determine the consequences of a breach of certain
primary rules …as well as any interrelated cluster …of rules on a limited problem
together with the rules for the creation, interpretation, application, modification, or
termination of those rules38
.”
In the MOX plant case cited above, it is claimed that the OSPAR award represents an
important precedent in delineating the contours of self- contained treaty regimes by
allowing limited interaction between the OSPAR Convention and other environmental
regimes39
.The OSPAR arbitration ruled on the separability of the “OSPAR dispute” from
other disputes on the ground that:
37
J. Combacau and D. Alland, “Primary and Secondary Rules in the Law of State Responsibility:
Categorizing International Obligations”, 1985,47 Netherlands Year Book of International Law, 117 38
International law commission, Fragmentation of International law: Difficulties Arising from the
Diversification and expansion of International Law,A/CN.4?L.682, Fifty-eighth session, Geneva, 13 April
2006,A/CN.4/L.682, 83 39
Supra, note 30, 816
24
24
“Each of the OSPAR Convention and Directive 90/313 is an independent legal source
that establishes a distinct legal regime and provides for different legal remedies40
.”
On this ground, the tribunal rejected the relevance of the dispute settlement procedures in
the other regimes and other substantive international law norms on the right of access to
environmental information. An issue of great interest for our purpose is the panel’s
majority ruling that the OSPAR Convention is an isolated regime from parallel legal
regimes and that it has powers of review over the decision of the U.K.’s restriction on the
disclosure of information relating to the operation of the MOX plant. This represents the
clear recognition of the self-contained approach by the panel.
The ITLOS recognized the same approach in the Southern Bluefin Tuna case in
maintaining that:
“…But the Tribunal recognizes as well that it is a common place of international
law and state practice for more than one treaty to bear up on a particular dispute.
There is no reason why a given act of a State may not violate its obligations under
more than one treaty. There is frequently a parallelism of treaties, both in their
substantive content and in their provisions for settlement of disputes arising there
under….the conclusion of an implementing convention does not necessarily
vacate the obligations imposed by the framework of convention up on the parties
to the implementing convention41
.”
40
MOX plant case (Ireland V. UK), (2003), 42 ILM 1187, OSPAR Arbitral Tribunal, para. 142 (Emphasis
mine) 41
Supra note 31,para 52
25
25
This indicates that there is a trend by international courts and tribunals to resort to the
“self-contained regime” approach in disposing cases that raise issues of multiple fora.
3.3. The Harmonization Approach
This view considers particular legal regimes not as a secluded island that should be
treated independently, but as part of the territorial domain of international law that must
adapt itself to the variety of fields with which it has to deal. It asserts that the substantive
provisions applied by specialized tribunals be construed in light of all relevant
international law norms on the matter.42
In the environmental field, the harmonious construction of international conventions by
international courts and tribunals is recognized as generally offering a more acceptable
method of regulating interaction between overlapping norms43
. In the southern bluefin
tuna case discussed above, though the ITLOS endorsed the self-contained regime, the
arbitral tribunal established thereafter refused to consider the provisions of UNCLOS in
isolation from the regional fisheries treaty, thereby adopting the harmonious approach. In
recognizing this approach, it stated that:
“The parties to this dispute - the real terms of which have been defined
above -are the same parties grapping not with two separate disputes but
with what in fact is a single dispute arising under both conventions. To
find that, in this case, there is a dispute actually arising under UNCLOS
42
Supra note 36, 824 43
Ibid.
26
26
which is distinct from the dispute that arose under the CCSBT would be
artificial44.”
In June 2003, the arbitral panel in the UNCLOS MOX plant case also expressed a
compatible view with regard to the relations between UNCLOS and EC law .While it
accepted that there might be certain UNCLOS provisions which are not regulated by
parallel EC law provisions, it held that “there is no certainty that any such provisions
would in fact give rise to a self-contained and distinct dispute capable of being resolved
by the tribunal”45
.
In combining the concern for procedural comity to the pro-harmonizing approach, the
panel stated that:
“In the circumstances, and bearing in mind considerations of mutual
respect and comity which should prevail between judicial institutions both
of which may be called up on to determine rights and obligations as
between two states, the Tribunal considers that it would be inappropriate
for it to proceed further with hearing the parties on the merits of the
dispute in the absence of a resolution of the problems referred to.
Moreover, a procedure that might result in two conflicting decisions on the
same issue would not be helpful to the resolution of the dispute between
the parties46
.”
44
Supra note 32,para 54( emphasis mine) 45
Mox plant (Ireland V.UK), Order No.3 of 24 June 2003, Permanent court of arbitration, para.26, Online:
PCA <http:/www.pca-cpa.org/PDF/MOX%20Order%20no3.pdf >. 46
Ibid. para28
27
27
Such combination of a pro-harmonizing approach to the substantive applicable law and
procedural comity vis-à-vis competing procedures was hailed as the best way to reduce
the disharmonizing tensions associated with the specialization of international law and
sustain its coherence in the long run47
.
Now, I will turn in to examining how, in the event of conflict between compulsory
dispute settlement mechanisms incorporated under MEAs and same procedures either in
the environmental regimes or other disciplines, the situation seems to be regulated.
3.4 Towards resolving the conflict in the MEAs context
As indicated in the first section, the specific compulsory dispute settlement system
incorporated in most MEAs is the non-binding compulsory conciliation system. This may
conflict with the dispute settlement system incorporated under complimentary treaties
with in the environmental regime. In such instances, countries may be subjected to the
same dispute in parallel proceedings. What solution is available to the panel in the
environmental fora confronted with this situation?
It is my opinion that a panel confronted with such kind of disputes should adopt the
harmonious approach in resolving the problem for the following reasons: first, in general
terms, it is argued that the increased normative density of international law and the
growing number of competent international courts and tribunals presents a rising need to
47
Supra note 35,824
28
28
harmonize international rights and obligations regulating the same subject matter48
.This
assertion would be so realistic in such conflicts because, despite their geographical
specificity or substantive limitations, complimentary treaties address the same subject
matter as MEAs. Under this situation, it is hard to say that a dispute arising under MEAs
and its complimentary treaty address different subject matters.
Second, it is hard to say that a specific MEA, usually with a legal regime of limited
normative and institutional density, posses any unique feature that would justify isolating
its dispute settlement system from that incorporated under parallel complimentary legal
regimes such as the CCSBT. This is because, most of the times, complimentary treaties
do not have unique objectives, remedies, or, for that matter, unique dispute settlement
procedures.
Thirdly, pursuing parallel proceedings in such instances might give rise to inconsistent
judicial decisions. It also leads to unnecessary litigation and opens the door for
manipulating the international legal process. In this regard, the remark by the UNCLOS
panel in the MOX plant case cited above is of particular importance.
Therefore, when an environmental dispute settlement forum is seized by the problems of
multiple fora in entertaining disputes touching up on two complimentary treaties, both of
which have incorporated compulsory dispute settlement system, it should make a
harmonious construction of the law in a way to establish a single dispute that can be
entertained on a single channel.
48
Ibid. 823
29
29
It would be worth examining the situation where a competition may arise between the
dispute settlement system in the MEAs and the ICJ, due to an optional declaration of
acceptance of the ICJ’s jurisdiction. In this regard, the choice of the proper forum
depends on assessing the significance of adopting each of the approaches in entertaining
environmental disputes.
Of course, there are probabilities that the countries, even if have made the optional
declarations, might not be subjected to the compulsory jurisdiction of the ICJ. This
happens because, usually, in making optional declarations, countries have conditions
excluding compulsory jurisdiction for disputes where there is provision to use alternative
methods of settlement. Even if the countries have not made such a declaration and hence,
are subject to its jurisdiction, the applicant country may not want to refer the matter to the
ICJ. This may be a possibility in light of the unsatisfactory environmental case law of the
ICJ, which commended against its selection in most of the times49
.
If however, under the circumstances described above, the claim happens to be initiated in
the MEA forum and the ICJ, which will be the legitimate forum to dispose the dispute?
The PCIJ has faced a related dilemma in the Electricity Company of Sofia and Bulgaria
case, where it was confronted with two different sources of jurisdiction: a Belgian-
Bulgarian treaty of conciliation, arbitration and judicial settlement, and the optional
49
Cesare Romano, “The Southern Bluefin Tuna Dispute: Hints of a World to Come… Like It or Not”,
Center on International Cooperation (2001),320 Online: Project on International Courts and Tribunals
<http://www.pict-pcti.org/publications/articles_paprs.html>
30
30
declarations by the two countries 50
.The court has decided in favor of assuming
jurisdiction on the ground that “the parties, through the multiplicity of agreements they
concluded, do not have the intention of taking the court’s jurisdiction away and weaken
the obligations which they had previously entered in to with a similar purpose….to allow
them to cancel each other out with the ultimate result that no jurisdiction would
remain”51
.
Although any speculation on how the ICJ would decide had the tension been between the
compulsory conciliation incorporated under the MEA and the ICJ is moot, the acontrario
inference from the above reasoning court seems to suggest suspension of the proceeding
up until the case is decided by the MEA procedure, as has been done by the ITLOS in the
MOX plant case. This is so because: first, in this particular situation discussed, the
purpose of resorting to the MEA procedure will neither “weaken their obligation” nor
“cancel each other [the procedures] with the ultimate result that no jurisdiction would
remain”. In light of this, it is unlikely that the ICJ would claim jurisdiction in such cases.
Second, the MEA procedure is better suited to handle environmental disputes and as
explained above, represents a viable alternative to the more formal means of dispute
settlement. Though the ICJ established an Environmental Chamber valuing special forum
for environmental disputes, this doesn’t seem to serve any practical purposes for different
reasons and in fact, the chamber has not yet entertained any environmental disputes52
.
50
Electricity Company of Sofia and Bulgaria, 1939 P.C.I.J. (Ser. A/B) No. 77(4 Apr.), 4 51
Ibid. 76 52
For the arguments against the effectiveness of the Environmenta1 Chapter of the ICJ, read P.R. Romano,
cited above at note 4, 125
31
31
This suggests that the MEA procedure would establish jurisdiction, though it may refer
the case back to the ICJ to decide on jurisdiction (for the sake of mutual respect and
procedural comity).
The other issue concerns the problem of forum selection in interdisciplinary legal
regimes. In this context, the issue at hand is the dichotomy between the dispute settlement
systems incorporated in the trade regime, particularly, the WTO system, and the
compulsory conciliation system in MEAs. In this regard, there is no jurisprudential
evidence touching up on the issue that can provide a clue. The Swordfish case mentioned
above could have provided some hint, but as indicated above, it has ended up with
negotiations between the two disputant states.
In light of the justifications behind each of the approaches designed to deal with similar
situations, it is my view that in this regard, the “self-contained regime” approach is the
option that will yield a better solution. First, all the justifications mentioned in favor of
harmonizing the disputes in the above circumstances are absent in this specific instance.
WTO members have declared the WTO fora as exclusively mandated to adjudicate trade
disputes. Hence, the object and purpose of MEA’s mechanism differs from those of the
WTO and thus in the above circumstances, it is difficult to say that the two fora are
dealing with the same subject matter.
This leads to the conclusion that while a MEA party is the subject of a dispute-settlement
process for its actions or in actions, the same governmental actions could be examined
32
32
before a WTO adjudicating body, pursuant to an allegation of a WTO violation. Under
the circumstances, the two institutions could reach different conclusions on factual
aspects or on the interpretation of the MEA’s provisions. In this case, the question on
how MEA members subjected to compulsory conciliation and also to the WTO should
deal with the various aspects of a dispute when findings from these fora can lead to
inconsistent decisions still remains unanswered.
In this regard, the 1996 report of the WTO Committee on Trade and Environment (CTE)
stipulated in its conclusions and recommendations that:
“If a dispute arises between WTO members, parties to a MEA, over the
use of trade measures they are applying between themselves pursuant to
the MEA, they should consider trying to resolve it through the dispute-
settlement mechanisms available under the MEA53
.”
The message of the report was that first the parties settle the dispute through the MEA
and only as a last resort would use of the WTO be made. This, however, has seriously
been opposed by the members on the ground that it would undermine their right under
Article 23 of the DSU54
.More over; the report has, at best, solely the legal value of
recommendation of the WTO CTE, which would find relevance in a WTO panel, but
does not constitute an amendment to Article 23.Therefore, in the absence of any
agreement between the parties to submit the dispute to a particular forum and short of any
53
Report of the committee on Trade and Environment (1996) (WT/CTE/1), World Trade Organization
<http://docsonline.wto.org/GEN_searchResult.asp> Para. 178 54
Magda Shahin, “Trade and Environment in the WTO: Achievements and Future prospects”,
(1997),Online: Third World Market , <www .twside.org.sg/title/ach-cn.htm>
33
33
international rule as to how these different mechanisms interact, it is likely that a single
dispute may be subjected to the parallel compulsory process of both the MEA and WTO
systems and in fact, different findings.
This, however, is one asset of the self-contained regime that encourages specialization
and ensures that courts do not overreach and encroach on less familiar legal regimes
governed by other dispute settlement bodies55
. In this context, the significance of this
approach is that the MEA dispute settlement system would be able to retain proper
ownership of the applicable disputes. Under the circumstances, it is difficult to say that
the two proceedings relate to the same subject matter that would yield the same results.
This point is better elaborated in the decision of the ITLOS in the MOX plant case which
held that:
“The dispute settlement procedures under the OSPAR Convention, the EC
Treaty and the Euratom Treaty deal with disputes concerning the
interpretation or application of those agreements, and not with disputes
arising under [UNCLOS]…Even if the OSPAR Convention, the EC
Treaty and the Euratom Treaty contain rights or obligations similar to or
identical with the rights or obligations set out in [UNCLOS], the rights
and obligations under those agreements have a separate existence from
those under [UNCLOS]…The application of international law rules on
interpretation of treaties to identical or similar provisions of different
treaties may not yield the same results, having regard to differences in the
55
Supra note 36,823
34
34
respective contexts, objects and purposes, subsequent practice of parties
and travaux pre`paratoires56
.
It is my view that the same explanation will hold true as to the relationship
between the obligations of the parties under the WTO and the MEA and therefore,
the MEA dispute settlement system can operate as a self-contained regime with
regard to environmental matters. The MEA system has unique features justifying
its isolation from the trade regime. It has unique environmental protection
objectives and remedies and in fact, as explained above, the system itself
(Compulsory conciliation) is a different procedure than that of the WTO system.
Conclusions
Due to the lack of homogeneity in the judicialization of international relations; the
international community is facing a disturbing phenomenon of litigation in multiple fora,
serially, or in parallel of essentially the same disputes. This raises the risks of
56
MOX Plant, Order of 3 Dec. 2001, ITLOS, at para.49-51, Online: International Tribunal for the Law of
the Sea, <www.itlos.org/start2_en.htm.
35
35
litispendence and forum shopping and undermines the ultimate rationale of international
judicial proceedings: closure and settlement. The complexity is much conspicuous when
the confrontation is between compulsory dispute settlement fora.
Granted, the various fora will not necessarily reach different conclusions as to the
underlying points of law or the dispute, nor are the cases the same, legally speaking,
different aspects of the dispute might be considered, different violations of different
norms might be invoked. This holds true in certain cases of interdisciplinary disputes
involving trade and environment and its adoption is to be decided on case by case basis,
as it may not be so in all the times. Yet, still, it makes the current state of affairs
unsatisfactory, as it falls short of one of the fundamental overarching goals of judicial
proceedings (be they domestic or international): closure. It also goes against the grain of
other fundamental legal principles like certainty of law, and encourages opportunistic
state behavior bordering abuse of rights, in defiance of the principle of good faith.
On the other hand, the adoption of the harmonization approach coupled with the concern
for procedural comity facilitates the mitigation of jurisdictional conflicts, reduces the risk
of conflicting judgments, and helps to protect the coherence of international law. As
suggested in the above analysis, however, there could be instances that spur a tribunal
handling an environmental dispute to resort to the self-contained approach rejecting the
harmonization approach.
36
36
Adopting any of the approaches wouldn’t solve the problems totally. However, a
thorough analysis geared towards the choice of the appropriate approaches based on the
considerations suggested would alleviate the grim consequences that ensue from the
proliferation of international courts and tribunal. Ultimately, there is a need for the
elaboration of the concept through further researches and inquiry in to the practices
developed by the various courts and tribunals dealing with related cases.
37
37