I.
Introduction
Mediation
has been shown to be effective in thousands of domestic environmental dispute
cases in the US, Israel and Europe since the 1970s. As a dispute resolution
alternative to adjudication, mediation can create more equitable, implementable
outcomes with lower transaction costs.[1]
While there are still very few international environmental disputes submitted
to adjudication or any type of formal dispute resolution, a small number of international
environmental legal instruments have set the stage for use of mediation for
these issues.
Part
II defines the common types of dispute resolution alternatives, and examines
the changing definition of mediation and its international use. Part III looks
at international treaties that address mediation, and part IV makes a
concluding statement on the trend for international environmental mediation.
The
use of international adjudication of environmental disputes, such as the
International or European Courts of Justice, is rare, both in developing law
and in ensuring treaty compliance. The international courts cannot hear
unilateral applications, require states’ consensus to determine international
law[2], and, in the absence of any
overarching international policing force, rely on the cooperation and consent
of states to monitor judgments.
ADR
encompasses a number of methods of resolving a dispute without using adjudication,
or using the court as a last resort. Promoters of ADR claim that the more
control disputing parties retain over the settlement process, the more likely
the outcome will be supported and implemented by the parties[3]. The most common forms of ADR
are negotiation, mediation, facilitation, arbitration and conciliation, though
these terms overlap and modify substantially depending on the context of the
dispute and as the field of ADR grows.
An
important feature of all these methods is that they are voluntary, again
stressing the control of the parties over their own agreement – from
facilitation where the whole decision-making process is created by the parties,
to arbitration where a decision still requires the parties’ consent for
implementation – and that the choice of third party to assist must be agreed
upon by all parties.[4]
A. Negotiation
Negotiation
typically involves two or more parties bargaining as advocates for their own
sides over an issue. These can be formal or informal, involving regulatory,
legal and/or political issues. There are different forms of negotiation,
ranging from those where not all participants even agree that a negotiation is
occurring, to ‘collaborative negotiation’ which involves as many stakeholders
as practicable in the process.[5]
‘Assisted negotiation’ includes the techniques of nonbinding arbitration,
conciliation and mediation.[6]
B. Arbitration
and Conciliation
Arbitration
involves a judge or panel which hears all the parties’ arguments and makes a
decision.[7]
The decision-making authority may be chosen in advance and specifically
mentioned within the wording of a contract or treaty, or it may be left to the
parties to decide at the time of a dispute. It may be legally binding, but,
more often it is not as most public officials cannot relinquish their authority
to an outside party.[8]
Non-binding arbitration resembles conciliation, and often the two methods are
used together; indeed there is a Convention on Conciliation and Arbitration
which has been ratified by 33 countries as of 2003 and a Court of Conciliation
and Arbitration since 1992 (www.osce.org). Conciliation is defined by the
International Law Dictionary as a process by which an impartial third party
makes an independent investigation and suggests a solution to a dispute.
C.
Facilitation
A
facilitator is similar to a moderator or coordinator, making arrangements for
meetings, taking notes, making comments or asking questions where appropriate
to help remove obstacles in a dialogue and to ensure that all sides are heard.[9] Facilitation is often used for
very large groups or for internal disputes in an organization, and the goal may
be more to create or improve the decision-making process than to settle a
particular issue.
D. Mediation
Mediation
in its most basic and general sense is the use of a third party to help resolve
conflict between two or more parties. Mediation has a long history in
international relations, and over time the practice has made inroads into other
forms of conflict – labour, business, family, and community disputes – and
recently into public policy-making, including environmental issues. However,
the definition of mediation and of a mediator has broadened along with its
use.
1.
Neutrality in Mediation
Historically,
the role of a mediator has been in a political conflict between two countries,
typically a representative of a third country, which may or may not be neutral,
who is called upon to help resolve the issues and avoid war. Since the
establishment of the United Nations, it and similar regional bodies, such as
the Organization of African Unity or the Organization of American States, have
been asked to mediate because of their appearance of greater neutrality. In
the United States and Europe in the 1900s, the increasing strength of labour
unions leading to longer and more serious disputes, and various types of
litigation clogging the courts, have both been factors promoting the use of
mediation, and the last few decades have seen the appearance of professional
neutrals, mediators and facilitators, professional organizations, rosters and
conferences, standardization and best-practice models, and certificates to
university-level degrees being offered.
Therefore
a distinction must be made between mediation using a neutral third party and
mediation involving a third party potentially having its own interests in the
outcome. While neutrality is not a requirement of a mediator, it must be
recognized that a non-neutral mediator may act as another party to the
conflict, bringing in additional issues and possibly influencing the outcome to
its own preference.[10]
Informal non-neutral third party assistance is sometimes referred to as using
the ‘good offices,’ or influence, of the third party to resolve the dispute.[11]
2.
Role of the Mediator
For
the purposes of this paper, ‘mediator’ will be defined as a neutral third
party. The mediator may have individual discussion with the parties (also
referred to as caucusing) and may choose to present options gathered in caucus
or to suggest that more data may be needed in certain areas, but a mediator
does not present her own solutions, express a preference, nor become a party to
any agreement.
A
mediator may use techniques associated with other forms of ADR in the
resolution process. The neutral may begin as a facilitator, helping to shape
the process, then step into the role of mediator if a more active role seems
required.[12]
Sometimes a neutral is asked to act as mediator, but also as arbitrator should
the mediation not resolve the issue. This can have an effect on the mediation
process if the parties are aware that what they discuss in the brain-storming
session of a mediation may be later used in the decision-making process of an
arbitration.[13]
3.
Role of Mediation in the International Polity
Dryzek
and Hunter (1987) see mediation as the future structure of decision-making
processes for international issues, as many environmental disputes are. In the
decentralized international regime, they assert that all parties to a dispute
should ideally reach a voluntary agreement which will increase compliance and
decrease the free rider problem. They claim the problem-solving techniques
associated with mediation get to the heart of issues, which creates a better
agreement and again boosts compliance, and that through increasing
communication and recognizing all the issues involved, not just the immediate
dispute, long-term relationships are strengthened, potentially decreasing the
frequency and/or intensity of future disputes. Finally, mediation as an international
decision-making regime would provide a solution for dealing with treaties
having conflicting dispute settlement mechanisms, and for countries concerned
about compromising their sovereignty by submitting to an outside tribunal.
III.
International environmental treaties including mediation as a dispute
resolution mechanism
Of
the over 150 international environmental treaties reviewed, Table 1 lists the
ten which make specific mention of mediation as part of the dispute settlement
regime. Though mediation is never mandatory, in all the following treaties
except Agenda 21, mediation is either listed as an option for peaceful
settlement or indicated as step in dispute settlement. Listing mediation
specifically is an important step in promoting the practice, but inclusion of
mediation as a step between negotiation and arbitration in the process of
escalating a dispute gives it a more concrete place in a definite structure.
Five of the treaties listed in Table 1 use mediation as a step, four with the following
wording:
“If
the parties concerned cannot reach agreement by negotiation, they may jointly
seek the good offices of, or request mediation by, a third party.”
A. Agenda 21
Agenda
21 was the final document of the United Nation Conference of Environment and
Development (UNCED) held in Brazil in 1992. It is an action plan with 115
specific topics.[14]
This document does not create an actual dispute resolution mechanism, but,
perhaps more importantly, it suggests the creation of a norm or custom of including
mediation among the skills necessary for decision-making. In Chapter 8: Integrating
Environment And Development In Decision-Making (d) 20, it refers to
allowing cooperative training in sustainable development law:
“Such
training should address both the effective application and the progressive
improvement of applicable laws, the related skills of negotiating, drafting and
mediation, and the training of trainers.”
B. The
Antarctic Treaty (1959) and the Convention on the Conservation of Antarctic
Marine Living Resources (1980)
The
Antarctic Treaty is one of the oldest treaties encompassing environmental
issues. The Antarctic is a perfect example of Dryzek’s international common
resource which could benefit from the voluntary mediation decision-making
regime. There are 41 treaty member nations involved in the Antarctic Treaty,
26 with voting status and 7 which are claimant nations but the area actually
has no indigenous population.[15]
Mediation in Antarctic disputes could allow states to retain their sovereignty
rather than submitting to the authority of an outside tribunal and reduce the
free rider problem through this non-hierarchical process.
The
wording of both dispute settlement articles of the 1959 and the 1980
instruments are identical. Mediation is an option, one of the acceptable
“peaceful means” of resolution, though at the time this article was written,
there was no concept of environmental mediation in use, and mediation usually
referred to the ‘good offices’ concept referred to earlier.
C. African
Convention on the Conservation of Nature and Natural Resources (1968)
As
of 2004, this convention is in the process of being amended. It is one of the
first to use an ‘integrated approach’ to conservation of the environment and is
noted for its comprehensive nature and innovative provisions.[16] Its dispute settlement
article does have mediation as a step in the process, though it also
specifically names the mediator as the Organization for African Unity (OAU),
which has a Commission of Mediation, Conciliation and Arbitration. The OAU was
a major proponent for the creation of this treaty in the 1960s, and remains one
of the strongest regional organizations in Africa, however the question could
still be raised whether OAU would be a truly neutral mediator.
D. The Vienna Convention for the Protection of the Ozone Layer (1985)
This
is a framework treaty allowing for international cooperation to protect the
atmospheric ozone layer which was being destroyed by the use of a chemical
substance in aerosol sprays. It was one of the most widely ratified
environment conventions until UNCED and its Montreal Protocol is generally
considered among the most successfully implemented.[17] It is important that in such
a document mediation is specifically referenced as a step following
unsuccessful resolution through negotiation.
E. Convention
for the Protection of the Natural Resources and Environment of the South
Pacific Region (1986)
The
South Pacific Regional Environment Program, working from an action plan from a
1982 UN conference, produced this convention after another conference in 1986.[18]
F. Convention
on Biodiversity (1992)
The
Convention on Biodiversity (CBD) was also a document from UNCED. It is a
framework treaty which some describe as “primarily aspirational provisions,
with matters of substance left to future development by its own Conference of
the Parties”.[19]
However, in regards to the settlement of disputes among parties to the
Convention, the CBD was concrete in its placement of mediation as a step after
negotiation, and if resolution is still not reached, then the dispute escalates
either to arbitration or the International Court of Justice or both.
G. Convention on the Protection of the Marine Environment of
the Baltic Sea Area, (1992)
This regional instrument, replaced a similar
one from 1974, was notable in being the first to address comprehensively all
types of marine pollution including land-based, and to
combat marine pollution from oil in the entire drainage basin.[20]
This agreement had both environment and security benefits for the Baltic
region with an increased cooperation among the seven states which were parties.[21] While
this convention does refer to mediation as a step in the process, it also
allows for the mediator to be one of the signatory parties not involved in the
specific dispute, which could create a conflict of interest in the mediation
outcome.
H. North American Agreement on
Environmental Cooperation Between the Government of Canada, the Government of
the United Mexican States and the Government of the United States of America
(1993)
This
is the environmental side agreement of the North American Free Trade Agreement
creating the Commission for Environmental Cooperation (CEC), which serves as an
advisory board and hears complaints from the public as well as parties.[22] The agreement states that the
CEC Council may use mediation or other dispute resolution methods to resolve
disputes between parties.
I. United Nations Conference on Straddling Fish Stocks and Highly
Migratory Fish Stocks (1995)
This
convention attempts to protect fish stocks that are not in any states’
jurisdiction, but it also tries to balance resource utilization and protection
of biodiversity, referring to the maximum sustainable yield and the
precautionary principle.[23]
In its dispute settlement clause, it actually obligates its parties to find
peaceful means of resolution and mediation is in the list given in no
hierarchical order.
J. Arbitration
and Conciliation mechanisms
Appendix
2 shows two examples of treaties with a commonly found dispute settlement
clause allowing,
“…negotiation
or other peaceful means of their own choice…”
followed by the
availability of arbitration and conciliation if resolution is not reached.
While this wording does not expressly refer to mediation, it would be an
allowable option. This may be a shorthand way of referring to the variety of
assisted negotiation methods, but a specific reference would certainly be
preferable in the promotion of mediation. These treaties are United Nations
Framework Convention on Climate Change (1992) and the United Nations Convention
to Combat Desertification (1994).
IV. Conclusions
Emerging
trends appear to be towards increasing neutrality in mediation and formal
organization of the profession of mediator. While there has not been an
increase in the inclusion or promotion of mediation in international
environmental agreements in the last few decades, the recent development of
professional neutrals clearly changes the intent, and potentially the scope of
the dispute resolution clauses in older treaties. These clauses may create the
opportunity for modern neutral conflict management processes.
There
has been a significant increase in the use of ADR in the US in domestic environmental conflict. The US Congress under President Clinton passed the
Environmental Policy and Conflict Resolution Act of 1998 creating the United
States Institute for Environmental Conflict Resolution headquartered in Arizona which administers the multimillion dollar Environmental Dispute Resolution Fund.
In Europe the first Symposium on Environmental Mediation in Europe took place
in 2001. Israel has the Joint Environmental Mediator program training and
employing both Israeli and Palestinian mediators. Perhaps these domestic steps
are the forefront of greater future use of mediation on the international
scene.
Table 1 Describing
the role of mediation in the international environmental treaties which
directly or indirectly allow its use as of June 2004.
| Instrument Allowing Mediation | Date of Entry into Force | Number of Countries Ratifying /Acceding | Role of Mediation within Dispute Mechanism |
| The Antarctic Treaty | 23 June 1961 | 41 | Mediation as one option |
| African Convention on the Conservation of Nature and Natural Resources | 16 June 1969 | 29 | Mediation as a step |
| Convention on the Protection of the Marine Environment of the Baltic Sea Area | 1980 | 7 | Mediation as a step |
| Convention on the Conservation of Antarctic Marine Living Resources | 7 Apr 1982 | 28 | Mediation as one option |
| The Vienna Convention for the Protection of the Ozone Layer | 22 Sept 1988 | 187 | Mediation as a step |
| Convention for the Protection of the Natural Resources and Environment of the South Pacific Region | 22 August 1990 | 11 | Mediation as a step |
| Convention on Biodiversity | 1993 | 188 | Mediation as a step |
| United Nations Conference on Environment and Development: Agenda 21 | 1993 | 178 | Promotes training in mediation practices |
| North American Agreement on Environmental Cooperation Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America | 1994 | 3 | Mediation as one option |
| United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks | 2001 | 51 | Mediation as one option |
Appendix 1. Dispute settlement excerpts
from international treaties addressing environmental issues which directly or
indirectly allow mediation as of June 2004.
1. The
Antarctic Treaty (1 Dec 1959)
Entry into
Force: 23 June 1961
Article XI
1. If any dispute arises between two or more of the Contracting Parties
concerning the interpretation or application of the present Treaty, those
Contracting Parties shall consult among themselves with a view to having
the dispute resolved by negotiation, inquiry, mediation, conciliation,
arbitration, judicial settlement or other peaceful means of their own
choice.
2. Any dispute of this character not so resolved shall, with the consent,
in each case, of all parties to the dispute, be referred to the
International Court of Justice for settlement; but failure to reach
agreement or reference to the International Court shall not absolve
parties to the dispute from the responsibility of continuing to seek to
resolve it by any of the various peaceful means referred to in paragraph
1 of this Article.
http://www.antarctica.ac.uk/About_Antarctica/Treaty/treaty.html
http://fletcher.tufts.edu/multi/texts/BH390.txt
2. African Convention on the Conservation of Nature and Natural Resources (15 Sept 1968)
Entry into Force: 16 June 1969
Article XVIII. SETTLEMENT OF DISPUTES
Any dispute between the Contracting States relating to the interpretation
or application of this Convention which cannot be settled by negotiation,
shall at the request of any party be submitted to the Commission of
Mediation, Conciliation and Arbitration of the Organization of African
Unity.
http://fletcher.tufts.edu/multi/texts/african_convention.txt
3. Convention on the Conservation of Antarctic Marine Living Resources, (20 May 1980)
Entry into Force: 7 Apr 1981
ARTICLE XXV
1. If any dispute arises between two or more of the Contracting Parties
concerning the interpretation or application of this Convention, those
Contracting Parties shall consult among themselves with a view to having
the dispute resolved by negotiation, inquiry, mediation, conciliation,
arbitration, judicial settlement or other peaceful lmeans of their own
choice.
2. Any dispute of this character not so resolved shall, with the consent
in each case of all Parties to the dispute, be referred for settlement to
the International Court of Justice or to arbitration; but failure to
reach agreement on reference to the International Court or to arbitration
shall not absolve Parties to the dispute from the responsibility of
continuing to seek to resolve it by any of the various peaceful means
referred to in paragraph 1 above.
3. In cases where the dispute is referred to arbitration, the arbitral
tribuinal shall be constituted as provided in the Annex to this
Convention.
http://fletcher.tufts.edu/multi/texts/BH779.txt
4. Convention for the Protection of the Natural Resources and Environment of the South Pacific Region
(25 November 1986 at Noumea, New Caledonia)
Entry into force: 22 August 1990
Article 26
SETTLEMENT OF
DISPUTES
1. In case of a
dispute between Parties as to the interpretation or application of this
Convention or its Protocols, they shall seek a settlement of the dispute
through negotiation or any other peaceful means of their own choice. If the
Parties concerned cannot reach agreement, they should seek the good offices of,
or jointly request mediation by, a third Party.
2. If the
Parties concerned cannot settle their dispute through the means mentioned in
paragraph 1, the dispute shall, upon common agreement, except as may be
otherwise provided in any Protocol to this Convention, be submitted to
arbitration under conditions laid down in the Annex on Arbitration to this
Convention. However, failure to reach common agreement on submission of the
dispute to arbitration shall not absolve the Parties from the responsibility of
continuing to seek to resolve it by means referred to in paragraph 1.
3. A Party may
at any time declare that it recognizes as compulsory ipso facto and without
special agreement, in relation to any other Party accepting the same
obligation, the application of the arbitration procedure set out in the Annex
on Arbitration. Such declaration shall be notified in writing to the
Depositary who shall promptly communicate it to the other Parties.
http://fletcher.tufts.edu/multi/texts/BH892.txt
5. Convention
on Biodiversity (1992)
Entry into
Force: 1993
Article 27. Settlement of Disputes
2. If the parties concerned cannot reach agreement by negotiation, they may
jointly seek the good offices of, or request mediation by, a third
party.
3. When ratifying, accepting, approving or acceding to this Convention, or
at any time thereafter, a State or regional economic integration organization
may declare in writing to the Depositary that for a dispute not resolved in
accordance with paragraph 1 or paragraph 2 above, it accepts one or both of the
following means of dispute settlement as compulsory:
(a) Arbitration in accordance with the procedure laid down in Part 1 of Annex
II;
(b) Submission of the dispute to the International Court of Justice.
4. If the parties to the dispute have not, in accordance with paragaph 3
above, accepted the same or any procedure, the dispute shall be submitted to
conciliation in accordance with Part 2 of Annex II unless the parties otherwise
agree.
5. The provisions of this Article shall apply with respect to any protocol
except as otherwise provided in the protocol concerned.
http://www.biodiv.org/convention/articles.asp?lg=0&a=cbd-27
http://untreaty.un.org/English/sample/EnglishInternetBible/partI/chapterXXVII/treaty23.asp
6. Convention on the Protection of the Marine Environment
of the Baltic Sea Area, (9
April 1992)
Entry into force: 1980 (continuing from 1974 treaty)
Article
26 Settlement of disputes
1. In
case of a dispute between Contracting Parties as to the
interpretation or application of this Convention, they should seek a solution
by
negotiation. If the Parties concerned cannot reach agreement they should
seek the
good offices of or jointly request mediation by a third Contracting
Party, a
qualified international organization or a qualified person.
2. If the
Parties concerned have not been able to resolve their dispute
through
negotiation or have been unable to agree on measures an described
above, such
disputes shall be, upon common agreement, submitted to an ad hoc
arbitration
tribunal to a permanent arbitration tribunal, or to the
International Court of Justice.
http://fletcher.tufts.edu/multi/texts/22los.txt
7. United
Nations Conference on Environment and Development: Agenda 21 and Other UNCED
Agreements (14 Jun 1992)
Agenda 21
Chapter 8:
Integrating Environment And Development In Decision-Making
(d) Establishing
a cooperative training network for sustainable development law
20. Competent
international and academic institutions could, within agreed frameworks,
cooperate to provide, especially for trainees from developing countries, postgraduate
programmes and in-service training facilities in environment and development
law. Such training should address both the effective application and the
progressive improvement of applicable laws, the related skills of negotiating,
drafting and mediation, and the training of trainers. Intergovernmental
and non-governmental organizations already active in this field could cooperate
with related university programmes to harmonize curriculum planning and to
offer an optimal range of options to interested Governments and potential
sponsors.
http://habitat.igc.org/agenda21/a21-08.htm
http://www.un.org/esa/sustdev/documents/agenda21/english/agenda21toc.htm
8. North
American Agreement on Environmental Cooperation Between the Government of
Canada, the Government of the United Mexican States and the Government of the
United States of America (1993)
Entry into
Force: 1 Jan 1994
PART FIVE
CONSULTATION AND RESOLUTION OF DISPUTES
Article 23: Initiation of Procedures
1. If the consulting Parties fail to resolve the matter
pursuant to Article 22 within 60 days of delivery of a request for
consultations, or such other period as the consulting Parties may agree, any
such Party may request in writing a special session of the Council.
2. The requesting Party shall state in the request the
matter complained of and shall deliver the request to the other Parties and to
the Secretariat.
3. Unless it decides otherwise, the Council shall convene
within 20 days of delivery of the request and shall endeavor to resolve the
dispute promptly.
4. The Council may:
(a) call on such technical advisers or create such working
groups or expert groups as it deems necessary,
(b) have recourse to good offices, conciliation, mediation
or such other dispute resolution procedures, or make recommendations, as
may assist the consulting Parties to reach a mutually satisfactory resolution
of the dispute. Any such recommendations shall be made public if the Council,
by a two-thirds vote, so decides.
5. Where the Council decides that a matter is more properly
covered by another agreement or arrangement to which the consulting Parties are
party, it shall refer the matter to those Parties for appropriate action in
accordance with such other agreement or arrangement.
9. United
Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks:
Agreement for the Implementation of the Provisions of the United Nations
Convention of the Law of the Sea of 10 December 1982, Relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish
Stocks (August 4, 1995)
Entry into
Force: 11 December 2001
PART VIII
PEACEFUL SETTLEMENT OF DISPUTES
Article 27
Obligation to settle disputes by peaceful means
States have the obligation to settle their disputes by negotiation, inquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their own choice.
http://fletcher.tufts.edu/multi/texts/ilm1542.txt
http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXI/treaty9.asp
10. The Vienna Convention for the Protection of the Ozone Layer (22 March 1985)
Entry into Force: 22 Sept 1988
Article 11: Settlement of disputes
1. In the event of a dispute between Parties concerning the
interpretation or application of this Convention, the parties
concerned shall seek solution by negotiation.
2. If the parties concerned cannot reach agreement by negotiation,
they
may jointly seek the good offices of, or request mediation
by, a third
party.
3. When ratifying, accepting, approving or acceding to this
Convention, or at any time thereafter, a State or regional economic
integration organization may declare in writing to the Depositary
that for a dispute not resolved in accordance with paragraph 1 or
paragraph 2 above, it accepts one or both of the following means of
dispute settlement as compulsory:
(a) Arbitration in accordance with procedures to be adopted by the
Conference of the Parties at its first ordinary meeting;
(b) Submission of the dispute to the International Court of Justice.
4. If the parties have not, in accordance with paragraph 3 above,
accepted the same or any procedure, the dispute shall be submitted
to conciliation in accordance with paragraph 5 below unless the
parties otherwise agree.
5. A conciliation commission shall be created upon the request of
one
of the parties to the dispute. The commission shall be composed of
an equal number of members appointed by each party concerned
and a chairman chosen jointly by the members appointed by each
party. The commission shall render a final and recommendatory
award, which the parties shall consider in good faith.
6. The provisions of this Article shall apply with respect to any
protocol except as provided in the protocol concerned.
http://www.unep.ch/ozone/Treaties_and_Ratification/index.asp
Appendix 2. Dispute settlement excerpts
from two international environmental treaties using the “negotiation or other
peaceful means” clause.
1. United
Nations Framework Convention on Climate Change (9
May 1992)
ARTICLE 14
SETTLEMENT OF DISPUTES
1….In the event of a dispute between any two or more
Parties concerning the interpretation or application of the Convention, the
Parties concerned shall seek a settlement of the dispute through negotiation
or any other peaceful means of their own choice.
2….When ratifying, accepting, approving or acceding to
the Convention, or at any time thereafter, a Party which is not a regional
economic integration organization may declare in a written instrument submitted
to the Depositary that, in respect of any dispute concerning the interpretation
or application of the Convention, it recognizes as compulsory ipso facto and
without special agreement, in relation to any Party accepting the same
obligation:
(a)….Submission of the dispute to the International Court
of Justice, and/or
(b)….Arbitration in accordance with procedures to be
adopted by the Conference of the Parties as soon as practicable, in an annex on
arbitration.
A Party which is a regional economic integration
organization may make a declaration with like effect in relation to arbitration
in accordance with the procedures referred to in subparagraph (b) above.
3….A declaration made under paragraph 2 above shall
remain in force until it expires in accordance with its terms or until three
months after written notice of its revocation has been deposited with the
Depositary.
4….A new declaration, a notice of revocation or the
expiry of a declaration shall not in any way affect proceedings pending before
the International Court of Justice or the arbitral tribunal, unless the parties
to the dispute otherwise agree.
5….Subject to the operation of paragraph 2 above, if after
twelve months following notification by one Party to another that a dispute
exists between them, the Parties concerned have not been able to settle their
dispute through the means mentioned in paragraph 1 above, the dispute shall be
submitted, at the request of any of the parties to the dispute, to
conciliation.
6….A conciliation commission shall be created upon
the request of one of the parties to the dispute. The commission shall be
composed of an equal number of members appointed by each party concerned and a
chairman chosen jointly by the members appointed by each party. The commission
shall render a recommendatory award, which the parties shall consider in good
faith.
7….Additional procedures relating to conciliation shall
be adopted by the Conference of the Parties, as soon as practicable, in an
annex on conciliation.
8….The provisions of this Article shall apply to any
related legal instrument which the Conference of the Parties may adopt, unless
the instrument provides otherwise.
http://unfccc.int/resource/conv/index.html
2. United
Nations Convention to Combat Desertification (June
1994)
Entry into
Force: 26 December 1996
Article 28
Settlement of
disputes
1. Parties shall
settle any dispute between them concerning the
interpretation
or application of the Convention through negotiation or other
peaceful
means of their own choice.
2. When
ratifying, accepting, approving, or acceding to the Convention,
or at any time
thereafter, a Party which is not a regional economic integration
organization may
declare in a written instrument submitted to the Depositary
that, in respect
of any dispute concerning the interpretation or application of
the Convention,
it recognizes one or both of the following means of dispute
settlement as
compulsory in relation to any Party accepting the same obligation:
(a) arbitration
in accordance with procedures adopted by the Conference
of the Parties
in an annex as soon as practicable;
(b) submission
of the dispute to the International Court of Justice.
3. A Party which
is a regional economic integration organization may make
a declaration
with like effect in relation to arbitration in accordance with the
procedure
referred to in paragraph 2 (a).
4. A declaration
made pursuant to paragraph 2 shall remain in force until
it expires in
accordance with its terms or until three months after written
notice of its
revocation has been deposited with the Depositary.
5. The expiry of
a declaration, a notice of revocation or a new
declaration
shall not in any way affect proceedings pending before an arbitral
tribunal or the
International Court of Justice unless the Parties to the dispute
otherwise agree.
6. If the
Parties to a dispute have not accepted the same or any
procedure
pursuant to paragraph 2 and if they have not been able to settle their
dispute within
twelve months following notification by one Party to another that
a dispute exists
between them, the dispute shall be submitted to conciliation at
the request of any
Party to the dispute, in accordance with procedures adopted
by the
Conference of the Parties in an annex as soon as practicable.
http://www.unccd.int/convention/menu.php
References
Antarctica. The Antarctic Region: Environmental
Documents. (1994) Global Environmental Law Annual 2:73 p74-253.
Austrian Federal Ministry of Agriculture and Forestry, Environment
and Water Management. (Oct 2000) Environmental Mediation in Europe: Status and Experiences. Horn, Austria: Druckerei Berger.
Birkhoff, J. E., Adler, P., Barrett, R., Bean, M., and Ozawa, C.
(2000) Managing Scientific and Technical Information in Environmental Cases:
Principles and Practices for Mediators and Facilitators. Presented at the Society
for Risk Analysis annual meeting. http://www.riskworld.com/Abstract/2000/SRAam00/ab0ac025.htm
(last visited 15 May 2004)
Birnie, P.W. & Boyle, A.E. (1992) International Law and the
Environment. New York: Oxford Press.
Cormick, Gerald R. (Sept 1982) The Myth, the Reality, and the
Future of Environmental Mediation. Environment, V 24:7 pp 14-32.
Court of Conciliation and Arbitration website http://www.osce.org/cca Retrieved 25 May
2004.
Davidson, M.G. (2002) Principal Legal Protection for Coral Reefs. Harvard
Environmental Law Review, V 26 pp499-546.
Dryzek, J.S. & Hunter, S. (Mar 1987) Environmental Mediation
for International Problems. International Studies Quarterly, V 31:1 pp
87-102.
Fijalkowski, A. & Cameron, J., editors. (1998) Trade and the
Environment: Bridging the Gap. Cameron May Ltd.
Foster, S. (2002) Environmental Justice in an Era of Devolved
Collaboration. The Harvard Environmental Law Review, 26:2 p459-498.
Gamman, J.K. (1994) Overcoming Obstacles in Environmental
Policymaking: Creating Partnerships through Mediation. Albany, NY: State University of New York Press.
Gelpke, N. & Jayarwardene, H.W. Regional case-studies:
The Baltic Sea, and Indian Ocean. From United Nation University website. http://www.unu.edu/unupress/unupbooks/uu15oe/uu15oe0m.htm
Retrieved 10 May 2004.
Hedley, C. (2001) Entry into force of the United Nations Fish
Stocks Agreement: An Initial Assessment. International Fisheries Bulletin,
No. 24. From website http://www.oceanlaw.net/ops/papers/7.htm
Retrieved 14 May 2004
International Law Dictionary definitions. From website http://www.legamedia.net/lx/result/match/21720087553143b6db1df4776a/index.php
Retrieved 20 May 2004.
Kiss, A. & Shelton, D. (2000) International Environmental
Law. New York: Transnational Publishers.
Susskind, L., Levy, P.F. & Thomas-Larner, J. (2000) Negotiating
Environmental Agreements. Washington DC: Island Press.
Touval, S. & Zartman, I.W., editors. (1985) International
Mediation in Theory and Practice. Boulder, Colorado: Westview Press.
Wall, J.A. & Lynn, A. (Mar 1993)
Mediation: A current review. The Journal of Conflict Resolution, V 37:1
pp160-194.
Full text
treaties accessed on the following websites:
Tufts University, Edwin Ginn Library, The Fletcher School ‘Multilaterals
Project’
[1] (a) Birkhoff, J. E., P. Adler, R. Barrett, M. Bean, and C. Ozawa.
(2000) Managing Scientific and Technical Information in Environmental Cases:
Principles and Practices for Mediators and Facilitators. (b) Dryzek, John S.
and Susan Hunter. (Mar 1987) Environmental Mediation for International
Problems. International Studies Quarterly, V 31:1 pp 87-102. (c) Wall,
James A. and Ann Lynn. (Mar 1993) Mediation: A current review. The Journal of
Conflict Resolution, V 37:1 pp160-194.
[2] Birnie, Patricia W. and Alan E. Boyle. (1992) International Law
and the Environment. New York: Oxford Press.
[3] (a) Birkhoff, J. E., P. Adler, R. Barrett, M. Bean, and C. Ozawa.
(2000) Managing Scientific and Technical Information in Environmental Cases:
Principles and Practices for Mediators and Facilitators. (b) Dryzek, John S.
and Susan Hunter. (Mar 1987) Environmental Mediation for International
Problems. International Studies Quarterly, V 31:1 pp 87-102. (c) Susskind,
Lawrence, Paul F. Levy and Jennifer Thomas-Larner. (2000) Negotiating
Environmental Agreements. Washington DC: Island Press. (d) Wall, James A. and
Ann Lynn. (Mar 1993) Mediation: A current review. The Journal of Conflict
Resolution, V 37:1 pp160-194.
[4] Susskind, Lawrence, Paul F. Levy and Jennifer Thomas-Larner.
(2000) Negotiating Environmental Agreements. Washington DC: Island Press. Wall,
James A. and Ann Lynn. (Mar 1993) Mediation: A current review. The Journal of
Conflict Resolution, V 37:1 pp160-194.
[5] Gamman, John K. (1994) Overcoming Obstacles in Environmental
Policymaking: Creating Partnerships through Mediation. Albany, NY: State University of New York Press.
[6] Susskind, Lawrence, Paul F. Levy and Jennifer Thomas-Larner.
(2000) Negotiating Environmental Agreements. Washington DC: Island Press.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Touval, Saadia and I William Zartman, editors. (1985) International
Mediation in Theory and Practice. Boulder, Colorado: Westview Press.
[11] Birnie, Patricia W. and Alan E. Boyle. (1992) International Law
and the Environment. New York: Oxford Press.
[12] Gamman, John K. (1994) Overcoming Obstacles in Environmental
Policymaking: Creating Partnerships through Mediation. Albany, NY: State University of New York Press.
[13] Wall, James A. and Ann Lynn. (Mar 1993) Mediation: A current
review. The Journal of Conflict Resolution, V 37:1 pp160-194.
[14] Kiss, Alexandre and Dinah Shelton. (2000) International
Environmental Law. New York: Transnational Publishers.
[15] Antarctica. The Antarctic Region: Environmental Documents. (1994) Global
Environmental Law Annual V 2:73 pp 74-253.
[16] Kiss, Alexandre and Dinah Shelton. (2000) International
Environmental Law. New York: Transnational Publishers.
[17] Ibid.
[18] Ibid.
[19] Davidson, Mary Gray. (2002) Principal Legal Protection for Coral
Reefs. Harvard Environmental Law Review V 26 pp499-546.
[20] Kiss, Alexandre and Dinah Shelton. (2000) International
Environmental Law. New York: Transnational Publishers.
[21] Gelpke, Nikolaus and Hiran W. Jayarwardene. Regional
case-studies: The Baltic Sea, and Indian Ocean. From United Nation University website. http://www.unu.edu/unupress/unupbooks/uu15oe/uu15oe0m.htm
(last visited 10 May 2004).
[22] Kiss, Alexandre and Dinah Shelton. (2000) International
Environmental Law. New York: Transnational Publishers.
[23] Ibid.
My Twitter account tells me I have 1892 "followers" and my Facebook page suggests that I add someone new to my account as a “friend” nearly every day. Despite our...
By Victoria PynchonIn this video series, Michael Lang interviews mediation practitioners about how to have a reflective instead of a reactionary practice. Explanatory image, which diagrams John Ford's process. This installment highlights...
By John FordJAMS ADR Blog by Chris PooleIn a wide range of disputes, counsel and their clients have increasingly turned to neutral analysis and evaluation. When conducted by experienced neutral professionals with...
By Clarence Pozza
