Environmental Dispute Settlement Research Articles

Investigating The Central Performance of International Organizations in Environmental Protection

The environment, as a place where life flows, has undergone crisis and transformation in the contemporary era more than in other periods of history. This process of crisis in the field of the environment has attracted the attention of countries and international institutions to prevent the spread of these crises as much as possible by taking measures at the international, regional and national levels. Undoubtedly, there is no other way to seriously deal with this crisis except for cooperation between governments and international institutions at the global level. The United Nations as an organization that is the manifestation of the presence of governments in the 1960s put attention to the environment on its agenda and prepared the preparations for holding the first international environmental conference in Stockholm in 1972. The United Nations, through its main bodies and subsidiary bodies such as UNEP, the United Nations Commission on Sustainable Development, the Intergovernmental Panel on Climate Change, as well as through its affiliated specialized institutions such as UNESCO, FAO, IMO, and the World Meteorological Organization, has been able to take measures. To be effective in protecting the environment. Also, international organizations have been able to carry out activities in the direction of education on environmental issues, formulation and development of international environmental laws, settlement of environmental disputes, and cooperation and coordination among institutions active in the field of environment. In general, international organizations with their activities in the field of the environment have been able to solve the gaps in international environmental law to a significant extent. Finally, it can be said that the existence of international environmental law in its current form and the optimal preservation of the environment are largely due to the activities of international organizations.

Law Enforcement as a Systematic Effort to Preserve the Environment

The purpose of this research is to know and analyze Law Enforcement as a Systematic Effort to Preserve the Environment. The research method that I used to complete this article is a normative research method. The data collection method prioritizes legal research with various legal materials through the results of a review of written sources such as documents, books, journals, which are related to legal materials because they are different from the ambiguity of law enforcement in environmental issues. The results of the study say that the legal action given to the perpetrators of environmental pollution and destruction consists of administrative aspects, civil aspects, and criminal aspects. Article 76 (2) Environmental Protection and Management Law No. 32 of 2009 stated that administrative sanctions consist of written warnings, enforcement by the government, freezing of environmental permits and revocation of environmental permits. Regarding the settlement of environmental disputes according to Article 84 of Law no. 32 of 2009, there are two ways to claim compensation and/or environmental cleaning costs, namely environmental dispute resolution outside the court and environmental dispute settlement outside the court

Integration Model of Environmental Dispute Settlement Outside the Court Between Local Communities and Corporations

Integration Model of Environmental Dispute Settlement Outside the Court Between Local Communities and Corporations

Government’s Role After the 374/PDT.G/LH/2019/PN.JKT.PST Decision concerning Jakarta’s Air Pollution in the Context of Environmental Recovery

ABSTRACT Purpose of the study: This study aims to realize state responsibility through implementing government authority to court decisions in restoring the right to a good and healthy environment. Method: This study utilized a normative juridical method with a statutory approach and decision analysis. Results: In the settlement of environmental disputes, the error-based recovery approach aims to create fair law enforcement. Applications of this study: This research serves as a reference for the government in making policies and dispute resolution. Hence, the settlement of environmental disputes is not only based on errors but also risk. Novelty/ Originality: Mechanisms for resolving environmental issues will be discovered through environmental recovery, allowing the law to work for the benefit of humankind. Thus, the law is not solely anthropocentric but also ecocentric following the environmental recovery approach. Keywords: State Responsibility, Government Authority, Environmental Recovery

Environmental Disputes Without Protection Of Strict Liability Principles: Again, Law On Job Creation

The 1945 Constitution of the Republic of Indonesia in Article 28 H paragraph 1 states that a good and healthy environment is a human right and a constitutional right for every Indonesian citizen. The form of environmental protection is then accommodated, one of which is Article 88 of Law Number 32 of 2009 concerning Environmental Protection and Management (UU PPLH) through the Strict Liability principle or what is called absolute liability for every party who pollutes and destroys the environment caused by Hazardous and Toxic Materials (B3) and waste of Hazardous and Toxic Materials without the need to prove of the element of fault first. However, after the enactment of Law Number 11 of 2020 concerning Job Creation, absolute liability for perpetrators of environmental destruction was lost because the phrase “without the need to prove of an element of fault” was abolished so that accountability was based on mistakes (liability based on fault). The purpose of this study is to determine the impact of eliminating the principle of strict liability in the settlement of environmental disputes in Indonesia. The research method used is normative legal research using statutory, conceptual, and case approaches. Based on the results of the study, it shows that the abolition of strict liability in the Environmental Protection and Management Law will burden victims in environmental disputes, especially ordinary people, to ask for accountability because of the complexity of proving the element of error in industrial activities that use high technology and are related to Hazardous and Toxic Materials (ultrahazardous activity dan abnormally dangerous). Keywords: Job Creation, Liability Based on Fault, Environmental Dispute, Strict Liability

Studi Komparatif Penyelesaian Sengketa Lingkungan Di Pengadilan Tata Usaha Negara Indonesia Dan Thailand

This study aims to analyze the comparison of environmental dispute resolution in the State Administrative Court (PTUN) of Indonesia and its Thailand equivalent. This is a normative legal research, using statutory and comparative approaches. The results of the study are presented in an analytical descriptive form. The results of the study conclude that first, the equatlisation for the settlement of environmental disputes in the Indonesian PTUN and the ones in Thailand is based on the General Administrative Court Procedure Law as regulated in the laws governing the PTUN of each country, but technical guidelines for resolving environmental disputes in the PTUN are issued by the respective Supreme Courts of each country. Second, the first difference is that the Thai Administrative Court provides special arrangements related to compensation issues which include costs for health problems, costs for damage to natural resources, loss of identity and community arts and culture. Meanwhile, the PTUN Indonesia provides very limited compensation and prioritizes the claim for the validity of the object of dispute. The second difference is that the handling of environmental problems in the Thai Administrative Court examines the substance and facts related to the environment more deeply, so that a real picture of environmental problems is obtained in the field. An in-depth study of the substance, facts, environmental problems in the field is taken into consideration by the judge in making a decision, even though administratively there are no problems. Meanwhile, the dispute resolution in the Indonesian PTUN is administrative and procedural in nature.

Conflict of Jurisdiction and Harmonization Between WTO and Marine Environmental Dispute Resolution Mechanisms -- Concentrating on the EC-Chilean Swordfish Case

There is a conflict of jurisdiction between the maritime environmental dispute settlement mechanism and the WTO dispute settlement mechanism, which can lead to conflicts in practice, especially with regard to free trade. This paper therefore analyses the EC-Chile Swordfish case, in which both parties to the dispute submitted their cases to both the UN Tribunal for the Law of the Sea and the WTO panel procedure, and finds that the conflict of jurisdiction between the two mechanisms arises because of the conflicting concepts of their rules and the lack of specific provisions that make them equivalent in effect. As a result, it was not possible to exclude the jurisdiction of the other party, which could lead to different outcomes and a new impasse in dispute resolution. It is therefore important to harmonise the conflicting principles of the marine environment and free trade, and to establish a coordinating body between the two mechanisms in order to better resolve marine environmental disputes and ultimately help China to deal with such conflicts and establish its own environmental and trade regime.

Jurisdiction and Applicable Law in the Settlement of Marine Environmental Disputes under UNCLOS

Abstract Part XII of the United Nations Convention on the Law of the Sea (UNCLOS) on the protection and preservation of the marine environment contains provisions that are worded in a general manner. As “the problems of ocean space are closely interrelated and need to be considered as a whole”, these provisions need to be interpreted in harmony with the wider corpus of international law. However, when marine environmental disputes are brought before the UNCLOS dispute settlement bodies, their jurisdiction is limited to disputes arising under UNCLOS. The tribunals, therefore, have to navigate between deciding disputes in a hollistic manner and remaining within their jurisdictional limits. This article discusses the techniques used by UNCLOS tribunals to resort to other sources of international law when settling marine environmental disputes. It will then assess whether, in doing so, the tribunals have remained within their jurisdictional parameters and the wider implications of this practice.

South Batak Tradition for the Settlement of Environmental Disputes: A Tumbaga Holing Letter Model

In recent years, there has been a lot of environmental destruction caused by human activities, such as: dumping garbage into rivers, lakes, seas, public roads and others. A series of environmental crimes arise because less firm of existing legal regulation on environmental protection. To seek the new model of environmental protection, an empirical research method with a normative juridical approach and a socio-legal approach were applied. The results of the study show that the South Batak community, based on intangible heritage, has a convention to protect nature and people from disaster and Sociological it was already applied for the environmental disputes resolution; it is through convention of South Batak of Tumbaga Holing Letter of Dalihan na Tolu (a tree parted system in community meeting). South Batak community practices a manifestation of the implementation of justice against the perpetrators of acts of environmental destruction with 7 (seven) types of sactions. The seventh sactions range from the low to hard punishments. It is a traditional model that can be adopted into the modenr regulation, public policy or laws for environmental protection. It found that the South Batak Comunity model in prevention of environment desctruction has a lot of elements of the judiciary that could be adopted and implementated for public policy and law making in national and international levels.

Environmental Challenges, Opportunities, and Policy Implications to Materialize China’s Green Belt and Road Initiative

China’s Belt and Road Initiative (BRI), announced in 2013, is an unprecedented mega-project that aims to improve connectivity between China and over 70 countries through infrastructure investment and regional cooperation. It has unparalleled potential to bring about positive economic development across vast regions of the world but, at the same time, may inevitably come with considerable environmental challenges. Even so, opportunities exist to prevent or mitigate environmental risks and realize China’s promise of a green BRI. China has proposed to construct a green BRI. The existing environmental law framework of host states, green development practices by China and BRI participating countries, and the role of bilateral investment treaties (BITs) as well as multilateral environmental agreements (MEAs) all increase the odds of a green BRI. This article contributes to existing BRI-related literature by examining the environmental challenges and opportunities of the BRI and providing suggestions on building a comprehensive environmental protection mechanism. It is suggested to stringently implement environmental norms and green BRI policies, make greater use of BITs and MEAs, bring together various actors, mobilize all available resources, and establish an efficient environmental dispute settlement and environmental remediation system.

Perlindungan Hukum Terhadap Masyarakat yang Terpapar Limbah B3

This research examines the legal protection of people who are victims of the B3 madical waste. This research is a qualitative research with literature study. The main sources in this research are written sources in the form of books, research results, and laws which related to the issue. The results showed that the law provides protection to people who are exposed to the B3 madical waste, both criminal and civil law. When a dispute happening between the community and the company, the solution can be done in two ways, litigation and non-litigation. Settlement of environmental disputes through channels outside the court according to Article 85 paragraph (3) can only be done by using the services of a mediator and / or arbitrator to help resolve the dispute. Active community participation can be carried out by referring to Article 86 of the PPLH Law by establishing a free and impartial environmental dispute resolution institution facilitated by the government and local governments.

PENGUATAN CLASS ACTIONS DAN LEGAL STANDING DALAM PEMIKIRAN PERBARUAN UUPPLH DENGAN PERSPEKTIF HUKUM PROGRESIF

Increasing cases of pollution and environmental destruction are closely related to environmental law instruments as the pillars of law enforcement in the settlement of environmental disputes. Environmental law instruments are regulated by Law no. 32/2009 on Environmental Protection and Management. The type of this research is normative law research with statute approach and conceptual approach with research object that is Law no. 32 of 2009 on the Protection and Management of the Environment and various practices of class action and legal standing lawsuits. This study aims to examine the form of settlement of environmental disputes through litigation accommodated by the Environmental Law through class action (legal action) and legal standing (lawsuit of Environmental Organization). Even class action movements have been recognized in the juridical formal level, but are still constrained by the understanding of the shallow society in practical terms. Likewise, the legal standing is hampered by its own procedural petition which is considered to be limiting and reducing the space of the Environmental Organization to defend with compensation. This is the importance of the UUPPLH's renewal concept in order to better accommodate the power of community autonomy in environmental advocacy with a progressive legal perspective as a breakthrough. More concretely, the expected long-term goal of creating an upcoming environmental law reform is directed to a number of things, among others, the idea of ​​a certified judge in the field of environment, the formulation of KLH institutional strengthening and greater access placement for communities to strengthen community autonomy towards civil society

PENYELESAIAN SENGKETA LINGKUNGAN HIDUP DI LUAR PENGADILAN

Sustainable development always causes changes to the environment, which causes damage. In order to resolve problems with those who have polluted the environment, it is done through the courts (Litigation) and through out of court (Non Litigation), while the settlement through the courts, can be done through the means of criminal law, civil law and administrative law . The problem in this article itself is First, how is the settlement of environmental disputes outside the court in civil law matters? Second, what are the obstacles in resolving environmental disputes outside the court? This article uses a normative approach to further analyze data qualitatively. Out-of-Court Dispute Settlement is actually held to reach agreement on the form and the amount of compensation, and / or certain actions, to ensure there is no occurrence or recurrence of negative impacts on the environment. The obstacles that are often faced by the settlement of environmental disputes outside the court are mainly related to the nominal and the form of compensation due to differences in views between pollutants and prosecutors. Another obstacle is the difficulty of administrative law enforcement in the context of environmental management, when faced with administrative decisions in the form of revocation of business licenses that will have a sociological economic impact causing pressure from the community / Non-Governmental Organizations (NGOs) to submit cases of pollution and damage to court hearings.

Penyelesaian Sengketa Melalui Upaya Litigasi di Bidang Penegakan Hukum Lingkungan Keperdataan

Environmental dispute settlement through litigation lines is strictly regulated in Law No. 32 of 2009 on the Protection and Environmental Management. The former law pointed HIR and RBg, PERMA No. 1 2002 Event Class Action. HIR and RBg did not set a class action, strict liability, legal standing, citizen lawsuit. Rules pluralistic diffi cult as the legal basis of environmental law dispute resolution. Problematic in civil law will cause blurring of norms, conflict norms, norms vacancy, will bring the consequences of law enforcers. If the law enforcement believes the law is the law, so that the rule of law, justice, expediency, which is the purpose of the law, it is diffi cult to realize. Based on legal issues cause problems pluralistic level, the rules, while the class action always demands are not accepted on the grounds HIR, RBg not set. Based on juridical issues, sociological and philosophical issue of whether arrangements formulated civil judicial procedure in civil Environmental Law Enforcement has been inadequate. Normative legal research writing method and in qualitative analysis to obtain quality legal materials. According to Law No. 48 the Year 2009 on Judicial Power, with the principle of ius curia Novit, a judge can do rechtsvinding. The rule of law in the enforcement raises multi pluralistic interpretation.Keywords:

THE ROLE OF INTERNATIONAL ARBITRATION IN ACTIVATING THE INTERNATIONAL OBLIGATIONS FOR PROTECTING THE MARINE ENVIRONMENT FROM POLLUTION

Protecting the marine environment from the risks of pollution are the biggest challenges that facing international law. Many legal attempts have been established to find out the reasons of non-enforcement of international commitment to protect the marine environment from the dangers of pollution. In this view, the attention is totally turning toward international law due to being sensitive, vital and responsive to the needs and requirements of the marine environment protecting it from the risk of pollution by friendly settlement of international environmental disputes, thus enhancing international cooperation among countries to enable them to face the threat of international pollution. The aim of the study is to achieve an optimal legal solution to reduce pollution of the marine environment through international arbitration, which can balance the implementation of international environmental commitments while preserving the sovereignty and immunity of the States. The approach used in the study is the analytical approach and descriptive approach, To address the problem of research and the tools used to collect information made through previous studies of international reports published on the United Nations, case law of the International Court of Justice, International arbitration published research in periodicals, as well as the writings of senior jurists and specialized environment related, during the period from 1981 to 2015. the sample was presented in a table attached to the end of the letter, including a series of previous studies in the same field. These studies indicated many advantages of international arbitration, and the importance of international environmental agreements in preserving the marine environment from pollution and the extent of responsibility of countries as a result of their violation of international environmental agreements. The competence of the international arbitration mechanism to settle marine environmental disputes, leading to greater protection and preservation of the marine environment from pollution; the study concluded with a set of recommendations for States to settle all marine environmental disputes through international arbitration and build a court for International Environmental Arbitration and International Treaty for the Protection of the Marine Environment.

The South China Sea arbitration: Environmental obligations under the Law of the Sea Convention

This case note analyses the marine environmental protection issues that arose in the 2016 South China Sea arbitration. Given that the South China Sea includes highly productive fisheries and extensive coral reef ecosystems, the alleged breach of environmental obligations under the United Nations (UN) Convention on the Law of the Sea was important in this arbitration. The Arbitral Tribunal examined three obligations concerning marine environmental protection under the UN Convention on the Law of the Sea: the obligation of due diligence; the obligation to conduct an environmental impact assessment; and the obligation to cooperate. The Tribunal's arbitral award contributes to the clarification of the interpretation of relevant provisions concerning marine environmental protection under the Convention. Furthermore, a remarkable feature of the arbitration was that the Tribunal appointed experts to have an independent opinion with regard to environmental damages arising from China's activities in the South China Sea. The use of experts in the South China Sea arbitration is worth noting, since scientific evidence is of particular importance in the settlement of international environmental disputes.

Alternative Dispute Resolution in the Settlement of Environmental Disputes in South Africa

Alternative Dispute Resolution in the Settlement of Environmental Disputes in South Africa

English

This study presents a detailed and critical review of the Alternative Dispute Resolution as a non-judicial mechanism for the settlement of environmental disputes in the Niger Delta region of Nigeria. Ordinarily, disputes whether environmental or otherwise are resolved through court processes, but due to delays, costs, publicity and technicality associated with litigation, alternative dispute resolution (ADR) mechanisms evolved. There are several bitter complaints from the victims of pollution in the Niger Delta region that the courts, conventionally the last hope of the common man, have not lived up to expectations in environmental litigations thereby justifying their recourse to ADR as a better option. A significant number of environmental cases were lost on flimsy reasons. Today, ADR procedures are considered imperative worldwide, and are used by a wide range of courts, tribunals, organizations and victims of pollution in Nigeria as tools for overcoming environmental impasse, improving the efficiency of difficult negotiations, and achieving durable settlements. It takes different forms as arbitration, mediation, conciliation, negotiation, among others. The detailed discussion of these forms, and their advantages vis-a-vis the courts’ processes will facilitate an informed appreciation of the use of ADR in the environmental disputes settlement. Key words: Alternative dispute resolution (ADR), environmental, Niger Delta, arbitration, court, pollution, right, Nigeria dispute.

The difficulties of environmental responsibility and ways of settling their international disputes: الصعوبات التي تواجه المسؤولية البيئية وطرق تسوية نزاعاتها الدولية

This paper dealt with procedural and substantive difficulties faced by environmental responsibility and how to overcome them, in addition to resolving environmental disputes ways. The study relied to collect and extract information from the main sources as references and basic books, research and scientific papers, lectures, and some national legislation and then take advantage of this information to come to the results of scientific value. This study was to identify the problems facing environmental responsibility, the study responded to a query search in terms of the nature of those problems and how to overcome them, where the researcher found during the study to several conclusions, perhaps the most notable: Approval of jurisprudence inadequacy tort techniques in its traditional form to overcome environmental protection problems. There are still difficulties in determining the basis of liability for environmental damage for being the place of doctrinal disputes have not been resolved conclusively because of the special nature of the environmental damage. The difficulty of self-responsibility in the field of environmental protection not only domestically but also just appeared on the international level. The financial compensation arranged by the environmental damage has not received wide acceptance in the field of environmental protection. The nature of international relations in the light of regional and international blocs, making negotiations more vital roads and palatable to solve environmental disputes. Based on these findings the study found several recommendations, perhaps the most important: the adoption of the application of all legal techniques to sort of responsibility in the field of environmental protection. Give environmental associations the right to legal representation to curb attacks on the environment. Oblige all industrial enterprises to take environmental measures. Develop the concept of diplomatic protection and international direct responsibility procedural rules relating to the settlement of environmental disputes in addition to the application of the theory of strict liability. To work on activating the consultative role of the International Court of Justice in resolving environmental disputes.

On the Environmental Responsibility of Chinese Enterprises for Their FDIs in Countries within the One Belt and One Road Initiative

Environmental protection is an essential aspect of the One Belt and One Road Initiative. Chinese enterprises need to pay close attention to their environmental responsibilities arising from their foreign direct investments (FDIs) in other Belt and Road countries. The determination of environmental responsibility is required to consider the sources of environmental obligations and operational logic of different dispute settlement mechanisms. Chinese enterprises face environmental obligations from four dimensions—that is, the Chinese government, host countries, international law, and other informal environmental obligations. The choice of a specific dispute settlement approach depends upon a series of considerations. When pre-judging and evaluating their environmental obligations, Chinese enterprises should, on the basis of the just and reasonable settlement of environmental disputes, clarify the environmental standards, identify the legitimacy and rationality of governmental regulations, review the objective environmental consequence(s), and determine the doctrine of liability fixation to be applied. Chinese enterprises should adjust their development principles of FDI, perform due diligence and prudence, and utilize multiple dispute resolution mechanisms.