Going Green by Adopting and Adapting Arbitration for Environment Related Disputes

Abstract

Despite the fact that the law has evolved in addressing the array of concerns existing by often immediate and irreversible damage to the soul environment, the working of the law has been plagued by an unsuccessful dispute settlement mechanism with little detailing on its administration. International environmental treaties are gradually making more space for alternative dispute resolution (ADR) methods for dispute settlement. The Permanent Court of Arbitration Environment Arbitration Rules, 2001 are a set of rules with a little novel features addressing concerns which are exclusive for environmental disputes – the role of the nonstate actors and multi-party disputes. The rules are formed in a manner that would make possible for any group of parties to dispute state, NGOs, multinational corporations and even individuals. The policy is also formulated to tackle multi-party disputes. Another important characteristic of these rules are that they also addresses the cost aspect of international dispute settlement process - member states have access to the environment assistance fund. Permanent Court of Arbitration (PCA) and the environment rules fill the place of forum for environmental disputes with expertise. The paper makes no endeavor to state that there is nonexistence of normative structure with reference to dispute resolution in trans-boundary environmental disputes. Rather it aims to demonstrate the normative insufficiency in the methodology adopted to address the content of the dispute resolution mechanisms and present ADR methods as a successful methodology for resolution of environmental disputes. It starts with a concise discussion on the characterization of an environmental dispute and the difficulty in the present legal regime. This is followed by a short overview of the dispute settlement structure in international law. It then discusses the mechanism of conciliation, mandatory and optional, exemplified in the course of a few international environmental instruments. Further there is a dialogue on the Permanent Court of Arbitration Optional Rules for Conciliation in Environmental Disputes, 2001 (Hereinafter rules, 2001). The next part discusses the instrument of arbitration, mandatory and optional, as exemplified through state practice in a few arbitrations like the Mox Plant Arbitration, and the International Tribunal for the Law of the Sea (ITLOS) arbitrations. Additionally there is a conversation on the rules, 2001 and how they could be of importance by customizing them for disputes like the transboundary freshwater disputes. The paper concludes with an assessment of the rules.