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<xTITLE>Environmental Mediation Clauses in International Legal Mechanisms</xTITLE>

Environmental Mediation Clauses in International Legal Mechanisms

by Christina Simokat
January 2008 Christina  Simokat

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

1. In the event of a dispute between Contracting 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 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


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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’

http://fletcher.tufts.edu/multilaterals.html

http://www.ecolex.org/ecolex/index.php

[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.

[22] Kiss, Alexandre and Dinah Shelton. (2000) International Environmental Law. New York: Transnational Publishers.

[23] Ibid.

Biography


Christina Simokat is a certified mediator and facilitator specializing in land use, public policy and community dispute resolution.  With an MA in Conflict Resolution and a BA in Environmental Studies, combined with experience in facilitating collaborative, consensus-building processes, Christina has a unique perspective and expertise.  She has served diverse groups nationally and internationally, including projects in Mexico and Cyprus, and has partnered with firms such as the National Conflict Resolution Center and the La Jolla Center for Dispute Resolution in managing complex, multi-party cases having significant effects on the community.  Christina is an accomplished conflict skills trainer, adjunct professor, and lecturer, and the author of several papers on environmental issues and conflict management.

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