Ecology, Environment and Conservation Paper

GOING GREEN BY ADOPTING AND ADAPTING ARBITRATION FORENVIRONMENT RELATED DISPUTES

Meenakshi Kalra and A.P. Bhanu

Abstract

Despite the fact that the law has evolved in addressing the array of concerns existing by often immediateand irreversible damage to the soul environment, the working of the law has been plagued by an unsuccessfuldispute settlement mechanism with little detailing on its administration. International environmental treatiesare 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 littlenovel features addressing concerns which are exclusive for environmental disputes – the role of the nonstateactors and multi-party disputes. The rules are formed in a manner that would make possible for anygroup of parties to dispute state, NGOs, multinational corporations and even individuals. The policy isalso formulated to tackle multi-party disputes. Another important characteristic of these rules are that theyalso addresses the cost aspect of international dispute settlement process - member states have access to theenvironment assistance fund. Permanent Court of Arbitration (PCA) and the environment rules fill theplace of forum for environmental disputes with expertise. The paper makes no endeavor to state that thereis nonexistence of normative structure with reference to dispute resolution in trans-boundary environmentaldisputes. Rather it aims to demonstrate the normative insufficiency in the methodology adopted to addressthe content of the dispute resolution mechanisms and present ADR methods as a successful methodologyfor resolution of environmental disputes. It starts with a concise discussion on the characterization of anenvironmental dispute and the difficulty in the present legal regime. This is followed by a short overviewof 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. Furtherthere is a dialogue on the Permanent Court of Arbitration Optional Rules for Conciliation in EnvironmentalDisputes, 2001 (Hereinafter rules, 2001). The next part discusses the instrument of arbitration, mandatoryand optional, as exemplified through state practice in a few arbitrations like the Mox Plant Arbitration, andthe International Tribunal for the Law of the Sea (ITLOS) arbitrations. Additionally there is a conversationon 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.