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COMPULSORY DISPUTE SETTLEMENT AND THE PROBLEMS OF MULTIPLE

FORA UNDER INTERNATIONAL ENVIRONMENTAL LAW

Teshager Worku Dagne

Abstract
With the increase in the common concerns and interests among states, the number of
treaties regulating their relations is also in the rise. This has been compounded with the
rapid proliferation of international courts and tribunals, posing the danger of a potential
conflict among these numerous fora. The problem becomes much more imminent when
the confrontation is between forums of mandatory jurisdiction, to which, the disputant
parties have conceded.

This article examines the situation as envisioned in the international environmental field
and suggests the possible remedy to resolve the problems raised. Accordingly, it is
divided in to three sections.

The first section states the backgrounds to the problem and explains the basic concepts of
common use through out the paper. It also provides the building blocks for the
consecutive discussions by making elaborations on the various dispute settlement systems
that may have impacts on the environmental field and hence, are subjects of discussion
through out the paper.

The second section elucidates the dangers that the existence of multiple fora in the
compulsory paradigm poses, by referring to actual cases that have figured in the
international courts and tribunals recently. In the last section, an attempt is made to
forward possible suggestions by drawing inferences from the approaches adopted by the
international courts and tribunals that have disposed claims reminiscent of the problems
addressed by the paper. The article ends up making conclusions and summarizing the
possible solutions.
1

Table of Contents

Titles Page

Abstract 1

Table of Contents 2

List of Abbreviations 3

1 Compulsory Settlement of Environmental Disputes 4

1.1 Introductory Background 4

1.2 International Environmental Disputes 4

1.3 Compulsory Dispute Settlement Mechanisms 6

1.4 Environmental Dispute resolution forums with compulsory jurisdiction 8

1.4.1 The International Court of Justice 9

1.4.2. The International Tribunal for the Law of the Sea (ITLOS) 10

1.4.3. The WTO Dispute Settlement System 10

1.4.4. Compulsory Dispute Settlement Mechanisms under MEAs 11

2. Plurality of Dispute Settlement Fora under International Environmental Law 15

2.1 Fragmented Dispute Settlement procedures with in the MEA regimes 16

2.2 The problems of fragmentation in inter disciplinary legal regimes 19

3 Approaches to Settling Disputes Involving Multiple Fora 21

3.1. The Self-Contained Regime Approach 23

3.2. The Harmonization Approach 24

3.3. Towards resolving the conflict in the MEAs context 28

Conclusions 36

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List of Abbreviations

CCSBT-Convention on Conservation of Southern Bluefin Tuna

CTE-Committee on Trade and Environment

DSU-Dispute Settlement Understanding

EC-European Commission

ECJ-European Court of Justice

EU-European Union

ICJ-International Court of Justice

ILC-International Law Commission

ITLOS-International Tribunal on the Law of the Sea

LOS-Law of the Sea

MEA- Multilateral Environmental Agreement

MOX-Mixed Oxide Fuel

PCIJ-Permanent Court of International Justice

UN-United Nations

UNCLOS-United Nations Convention on the Law of the Sea

WTO-World Trade Organization

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1 Compulsory Settlement of Environmental Disputes

1.1 Introductory background

As has been pronounced by the PCIJ in the advisory opinion on the status of Eastern

Carelia (1923), the fundamental legal principle underpinning the settlement of disputes

involving sovereign states is that “…no state can, without its consent, be compelled to

submit its disputes …to arbitration, or any other kind of pacific settlement”1. This is the

so-called “principle of consent”, a rule so “…well established in international law...” that

the Court felt no need to provide evidence of its existence, nor to elaborate on its precise

content2.

Yet, over the past two decades, theory and practice in relation to the compulsory exercise

of international jurisdiction, where, consent is largely form because it is either implicit in

the ratification of treaties creating certain international organizations endowed with

adjudicative bodies, or is jurisprudentially bypassed and litigation is often undertaken

unilaterally, have increasingly grown up. This shift is visible, not only in the international

judicial fora, but even amongst the quasi-judicial and implementation control procedures,

as well in political processes, such as determination of legality by the UN Security

Council3.

1
Status of Eastern Carelia, (1923),Advisory Opinion, PCIJ ( Ser. B) No.5,27
2
Cesare P.R. Romano, From the consensual to the Compulsory Paradigm in the International
Adjudication: Elements for a Theory of Consent, (New York: New York University Public Law and Legal
Theory Working Papers, 2006), Online: Center on International Cooperation, <http://1sr.nellco. org/nyu
/plltwp/papers/20 >, 4
3
Ibid.5

3
4

Mean while, since the founding of the United Nations, the number of treaties and the

matters they address have expanded vastly. It is increasingly common to find the same

subjects addressed in complementary global, regional and bilateral treaties. Many of

these treaties contain provisions on the settlement of disputes regarding the interpretation

or application of that treaty itself. Some of these establish compulsory jurisdiction. These

circumstances suggest an increasing probability that a dispute will arise between states

under the substantive provisions of two complementary treaties with dispute settlement

clauses, both of which provide for compulsory system either in general or with respect to

that dispute. One area of international law where this trend is evolving is the

Environmental law regime.

This article tries to explore the relationship between the compulsory dispute settlement

procedures contained in MEAs vis-à-vis the compulsory jurisdiction of other

international fora as incorporated in complimentary and related treaties and agreements.

In particular, it will try to examine the situation in which an environmental dispute

involving a country conceding to multiples of compulsory dispute settlement fora

touching up on the various aspects of a single dispute is dealt with.

Before hastening to analyzing the issue, however, it is necessary to define concepts of

significant usage in the paper, for; the exact contour of their notion can not be taken for

granted.

1.2 International Environmental Disputes

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5

In a discussion of issues in this paper, what constitutes an environmental dispute is the

key question that should be addressed first. There are varieties of disputes that are

regarded as “international environmental dispute”,4 which by far, are too broad for the

purpose of this paper. Two endeavors, however, deserve an attention for the proper

understanding of the concept as employed in here.

The first attempt is by Richard Bilder in 1975 which defined an international

environmental dispute as:

“Any disagreement or conflict of views or interests between states relating

to the alteration, through human intervention, of natural environmental

systems.”5

This definition, however, is too generic as it does not distinguish between degradation

and improvement of the “natural environmental systems”, nor does it refer to the notion

of ecosystem which, nowadays, has become central to international discourse.

An other definition given in 1986 provides that:

“ An international environmental dispute exists whenever there is a conflict of

interest between two or more states (or persons within those states) concerning the

4
In 1986, Arthur Westing, an eminent American social scientist, compiled a list of the twentieth century’s
major international conflicts which, in his opinion, involved environmental factors. Among the lists were
“the two world wars, some decolonization conflicts (e. g. Algerian War of Independence) and some civil
and succession wars (e.g. Nigerian civil war) or the Western Sahara Revolt. According to him , the
common denominator of all these conflicts is that natural resources ( e.g. minerals, fuels, fish stocks,
agricultural crops and, ultimately , the land itself ) were, if not the objective of the contending parties, at
least at stake in the conflict.” A.H. Westing, Environmental Factors in Strategic Policy and Action : An
Overview, (1986),cited in Cesare P.R. Romano, “The Peaceful Settlement of International Environmental
Disputes : A Pragmatic Approach”, (2000) 56 International Environmental Law & Policy Series, 3-20
5
R.B. Bilder, “The Settlement of Disputes in the Field of International law of the Environment”, (1975)
144 Hague Academy of International Law, 141

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6

alteration and condition ( either qualitatively or quantitatively) of the physical

environment”6

This definition again, doesn’t suit this paper, first because; by referring to “persons with

in those states” it enlarges the domain of international environmental disputes to the so-

called transnational disputes. Second, it speaks about alterations in general, with out

qualification. Third, it doesn’t specify the source of the alteration.

The satisfactory definition for the proper understanding of the term as employed in this

paper is the one given by P.R. Romano, which defined it as:

A conflict of views or of interest between two or more states, taking the form of

specific opposing claims and relating to an anthropogenic alteration of an

ecosystem, having detrimental effect on human society and leading to

environmental scarcity of natural resources.7

This definition is hinged up on the concept of “ecosystem” rather than “environment”, a

larger circle with in which the environment forms part,8 but through out this paper, we

will resort to the term “environment” as representing the concept in this broad context.

Therefore, we will only be dealing with disputes which meet the test of the above

definition.

1.3 Compulsory Dispute Settlement Mechanism

6
C.A Cooper, “ The Management of International Environmental Disputes in the Context of Canada-
United States Relations :A survey and Evaluation of Techniques and Mechanisms”, (1986) 24 Can. Y.I.L.,
243
7
Supra note 2 at 29
8
An “ecosystem” is “an ecological community together with its environment, functioning as a unit”
Wikipedia: the free encyclopedia S.V. “Environment” , Online: < http://en.wikipedia.org/wiki> see also
supra note 4, 25

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7

Dispute settlement mechanisms are procedures laid down to deal with disputes between

two (or more) countries about their obligations under particular international agreements.

These procedures are listed under article 33 of the UN charter and are regarded as

peaceful means to which states have to adhere to in settling their disputes9 . In most of the

cases, some kind of tribunal or court is established to hear the case and reach conclusions,

though there is also a preliminary phase where the parties in dispute are encouraged to

reach an amicable settlement .These procedures of dispute settlement are clearly most

appropriate where the breach of the agreement causes measurable harm to a country (e.g.

loss of market access in a trade agreement ) and where the case revolves around the

interpretation or application of general rules and principles10.

The procedures could be categorized in to either consensual or compulsory. The dispute

settlement procedure is consensual if the joint agreement of the disputants is required for

it to be instigated. Under the compulsory system, however, consent to the procedure is a

requirement of a state’s membership to an international organization or legal regime and

hence, the process is typically initiated by unilateral submission11. In this sense,

compulsory dispute settlement mechanisms resemble national courts as in both cases, the

plaintiff (applicant at the international level) need not obtain the respondent’s consent to

seize the court.

9
“The parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful
means of their own choice”. Charter of the United Nations, 26 June 1945, Can. T.S., 1945, No.7, art.33.1
10
Dunkan Brack, “International Environmental Disputes: International forums for non-compliance and
dispute settlement in environment-related cases, Energy and Environmental program”, (March 2001),
Online: Royal Institute of International Affairs, Department of Environment, Transport and Regions
<www.riia.org/Research/eep/eep.html>
11
Supra note 2, 5

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8

Compulsory settlement systems may be adjudicative or non- adjudicative in their nature.

The adjudicative system involves the rendering of binding decisions by an arbitral or

judicial body while in the non-adjudicative system (usually referred to as diplomatic

means of settlement), the parties to the dispute retain control over the outcome in so far

as they may accept or reject a proposed settlement.

One must distinguish dispute settlement procedures from the procedure most common in

MEAs namely, non-compliance procedures. The latter are invoked when a party’s failure

to comply with the obligations set out in the MEA damages the integrity and success of

the regime itself, rather than causing direct and measurable harm to any single party, in

which case, the party would instigate the dispute settlement procedure12.Cases of non-

compliance are usually reported by the party in respect of itself, by any other party or by

the MEA’s secretariat.

Therefore, whenever a mention is made to the compulsory system of dispute settlement in

this paper, it is inclusive of the adjudicative and non-adjudicative systems explained

above, in their compulsory nature.

1.4 Environmental Dispute resolution forums with compulsory jurisdiction

12
Supra note 4, 3

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9

Currently, though the international court of general jurisdiction, the ICJ, has had the

opportunity to consider cases with environmental implications under its statute, there is

no specialized international environmental court. Conversely, specialized dispute

settlement bodies established in environmental agreements and international trade laws

have generated an important case-law on disputes involving environmental aspects. In

this topic, we will have a cursory view of those systems exercising compulsory

jurisdiction in addressing international environmental disputes. It is not with in the scope

of this paper to exhaustively deal with the various aspects of each of the systems dealing

with environmental disputes. However, with a view to accentuate the peculiarities of

different fora exercising compulsory jurisdiction over international disputes, the

discussion will focus on fundamental aspects of the systems relevant to the writing.

1.4.1 The International Court of Justice

The ICJ is a standing court of the UN, established in 1945 along with the UN itself as a

successor to the PCIJ. It has jurisdiction in all cases referred to it by the consent of the

disputant parties and may also be invested with jurisdiction through treaties and

conventions in force, one of which is the UN Charter 13. According to the so-called

optional clause under Article 36.2, a state party to the statute can choose to submit to the

court’s compulsory jurisdiction disputes in relation to any other state which does the

same. This means that no previous agreement is needed in order for the court to have

jurisdiction to try a case between two parties which have both made a declaration under

Article 36.2 – the court will be competent to handle a case (declare admissible and take
13
The Statute of the ICJ, 26 June 1945, 59 Stat. 1055, 33 U.N.T.S. 993, art. 36.1

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binding decisions) brought to it by only one of the parties. Generally speaking, a state is

subject to its jurisdiction under the following circumstances; if it is subject to a

multilateral agreement which stipulates it, if it appears before the court without objecting

to it exercising jurisdiction in the case in question, or if it makes a unilateral declaration

recognizing its jurisdiction14 .

Though the ICJ is a court of general jurisdiction, it has full competence over all aspects

of international environmental law, and a number of MEAs specifically stipulate its

jurisdiction15. In 1993, the ICJ established a specialized chamber for environmental cases

under Article 26(1) of its statute. The chamber has the purpose to serve as a special forum

for environmental disputes though no case has to this date been brought to it.

1.4.2. The International Tribunal for the Law of the Sea (ITLOS)

The UN Convention for the Law of the Sea was agreed, after protracted negotiations, in

1982 and entered in to force ten years later. Part 15 of the convention deals with the

settlement of disputes concerning the interpretation or application of UNCLOS. It

submits disputes arising under the Convention with respect to the marine environment

and the marine living resources to a compulsory third-party dispute settlement by

providing several options for the state parties, including conciliation, arbitration and

14
Supra note 10,4
15
ICJ cases with environmental aspects include, e.g. , Nuclear Tests ( Australia V. France and New
Zealand V. France ), Judgment, [1974] ICJ Reports 253 and 457;Certain Phosphate lands in Nauru (Nauru
V. Australia), Preliminary Objections, Judgment , [1992],ICJ Reports 240; Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, [1996] ICJ Reports 226; Gabcikovo –Nagymaros Project
(Hungary/Slovakia), Judgment, [1997] ICJ Reports 7 ; and Fisheries Jurisdiction (Spain V. Canada),
Judgment, [1998]ICJ Reports, 432

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recourse to the ICJ and ITLOS16.The choice of forum will depend on prior declarations

made by the parties, and when no common choice is agreed then annex 7 arbitration is
17
the default position .The court or tribunal so chosen has jurisdiction over any dispute

concerning the interpretation or application of UNCLOS or of any other international

agreement related to the purpose of UNCLOS where the parties so agree, subject to a

number of exceptions set out in Section 3 of part 1518.

1.4.3. The WTO Dispute Settlement System

In the field of trade law, the WTO DSU establishes a system of compulsory and binding

adjudication of disputes arising under WTO agreements. WTO system’s significance in

this paper derives from the fact that it has allowed the review of cases concerning the

compatibility of environmental measures with trade obligations.19

1.4.4. Compulsory Dispute Settlement Mechanisms under MEAs

MEAs have incorporated various dispute settlement mechanisms, but most of them have

not evolved much in the field as in the majority of cases, environmental disputes end up

in negotiations. Most of the MEAs that contain dispute settlement provisions reflect, to a

greater or lesser degree, the methods for peaceful settlement of disputes listed in article

33 of the UN Charter20.A closer scrutiny of these procedures reveals several distinctive

16
United Nations Convention on the Law of the Sea, (10 December 1982) Article 286-288, Online: UNTS
3, <http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm.>
17
Ibid.
18
Ibid. , Article 288
19
Philippe Cullet & Alix Gowlland-Gualtieri, Key Materials in International Environmental Law,
(London: Ashgate Publishing Company, 2004), 587
20
Supra note 9

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features. One among these is that MEAs of the last decade are characterized by an

increased recourse to compulsory conciliation21.

Conciliation refers to the process of dispute settlement whereby the parties agree to

utilize the services of a conciliator, who then meets with them separately in an attempt to

resolve their differences. Many authors distinguish between “mediation” and

“conciliation,” but there is no universal consensus as to the precise definition of each of

these terms. The 1949 Revised General Act for Pacific Settlement of International

Disputes defines the task of a conciliation commission as follows:

“…to elucidate the questions in dispute, to collect with that object all necessary

information by means of enquiry or otherwise, and to endeavor to bring the

parties to an agreement. It may, after the case has been examined, inform the

parties of the terms of settlement which seem suitable to it, and lay down the

period with in which they are to make their decision.”22

In elaborating this, P.R. Romano asserts that conciliation combines the basic features of

both inquiry (i.e. the ascertainment of facts) and mediation (i.e. the endeavor to bring the

parties in to an agreement); in its most structured expressions, it might even resemble

judicial means but for the fact that its outcome is not binding23.However, unlike what

occurs in mediation, the third party assumes a more formal and detached role, often

investigating the details of the dispute.

21
Supra note 5, 43
22
The Revised General Act for the pacific settlement of International Disputes, 28 April 1949(1949)71
UNTS, art.15.1.
23
Supra note 4, 60

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Although in no sense binding, the recommendatory award of a conciliation body can have

a relevant impact on the dispute. Because it provides the parties with a thorough

ascertainment of facts by fact finding, a fundamental element of judicial means, and an

articulated proposal on how to settle the dispute by preserving the fundamental interests

of all stake-holders, conciliation is, out of all diplomatic means, the one which probably

has been most often included in MEAs24. It has significance in that, by radically changing

the bargaining positions of the parties, it exerts heavy pressure on them to comply.

Currently, two major trends are pervading through MEAs as regards conciliation. These

are the unilateral triggering of conciliation procedures (i.e. obligatory conciliation) and

their use as a subsidiary means when the parties fail to reach agreement on more formal

and binding procedures ( i.e. adjudicative means ).25

In the existence of several settlement fora for international environmental disputes under

the compulsory paradigm, it is likely that a certain dispute may be the subject of any two

or more of these jurisdictions. What would happen when a dispute arises on multiple

international legal regimes, each endowed with own dispute settlement procedures and

bodies, touching up on different aspects of the same dispute? Which procedure and

bodies will be used?

24
See, the 1982 UN Convention on the Law of the Sea,Art.297,The 1963 Optional Protocol Concerning the
Compulsory Settlement of Disputes of the Vienna Convention on Civil Liability for Nuclear Damage,(28)
The 1969 International Convention on Intervention on the High Seas in Cases of Oil Pollution Casualties,
(41), Annex , Chapter I, The 1985 Vienna Convention for the Protection of the Ozone Layer, (78),
Art.11(4), The 1992 Convention on the Biological Diversity , (106), Art. 27(4) and annex II, part 2, The
1992 Framework Convention on Climate Change ,(105) Art.14(5),The 1994 Convention to Combat
Desertification,(120), Art.28(6)
25
Supra note 4, 60

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If this concerns consensual procedures, the answer is simple as the parties can submit it to

whatever they can agree to use. But in the compulsory paradigms described above, where

consent to jurisdiction is locked-in, it becomes much complex. I will try to illustrate in

the following section that this is a real problem, extending to various legal regimes, both

global and regional, the focus being on the global aspect of the environmental subject

matter.

2. Plurality of Dispute Settlement fora under International Environmental Law

One of the most striking features of recent international law is the enormous expansion

and transformation of the international judiciary. In the last decade of the 20th century,

almost a dozen of international judicial bodies have become active. The expansion and

transformation of international judicial bodies is the consequence of an equally

tumultuous amplification of the number and ambit of institutions consecrated to ensure

compliance with international legal obligations and settlement of disputes arising there

from26.

At the same time, the number of states accepting the jurisdiction of these bodies, either

implicitly or, when necessary, explicitly, has increased. As explained under the first

chapter, most of these bodies have binding and compulsory dispute settlement

procedures. The result is that states that have a progressive international judicial policy,

and thus have submitted to a large and varied number of judicial and qausi-judicial

bodies, may be exposed to litigation in different fora at any given time. In these

26
Cesare P.R. Romano, “The Proliferation of International Tribunals: Piecing together the Puzzle” (1999)
31N.Y.U.J. Int’l L. &Pol., 709, Online: Project on International Courts and Tribunal < http://www.pict-
pcti.org/publications/articles_paprs.html.>

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circumstances, the choice of the battle ground is usually left to the tactical considerations

of the applicant.

In this section, we will look at the situation as it exists in the environmental regime. The

purpose is to examine the circumstances where disputes arising over the interpretation or

application of MEAs are dealt with in fragmented procedures of dispute resolution. This

kind of fragmented procedure may exist either with in the same legal regime (MEAs

regime), or among different regimes in different disciplines, dealing with different

aspects of the same dispute. We will be looking at these situations independently.

2.2 Fragmented Dispute Settlement procedures with in the MEA regimes

Most binding environmental treaties contain more or less detailed provisions on the

settlement of disputes. The scope of dispute settlement mechanisms is, as indicated

above, limited to disagreements arising from the interpretation or application of the

MEA. The majority of MEAs do not oblige parties to solve their disputes through binding

adjudication processes (such as that of the ICJ); although in many cases, parties can set

their preferences up on ratification of the agreement.

Given that dispute resolution procedures in MEAs tend to comprise mainly compulsory

conciliation, as indicated under Chapter one, potential linkages are feasible in respect of

common dispute resolution bodies. More specifically, state parties to a certain MEA (that

has adopted a compulsory conciliation system) might also have filed an open-ended

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optional declaration accepting the ICJ jurisdiction under Article 36(2) of the Court’s

statute27. In such instances, a dispute arising amongst these states over the interpretation

or application of such MEA may be subjected to the compulsory jurisdiction of the court.

More over, it is common to find that the same subjects of a MEA are addressed in

complementary global, regional and bilateral treaties28. Many of these treaties contain

provisions on the settlement of disputes regarding the interpretation or application of that

treaty itself. These provisions might have adopted any of the compulsory jurisdictions

discussed above. This circumstance suggests an increasing probability that a dispute will

arise between states under the substantive provisions of two complementary treaties with

dispute settlement clauses, both of which provide for compulsory settlement system

either in general or with respect to that dispute.

In all these circumstances, the choice of the battle ground is usually left to the tactical

considerations of the applicant. What would happen if such a dispute is submitted to the

compulsory conciliation of a particular MEA and an other compulsory system of dispute

settlement, or else, while initiated in one forum, the jurisdiction is objected by the other

state as being governed by an other procedure?

27
Currently, there are about fifty states accepting the ICJ jurisdiction, Supra note 10

28
Complementary treaties are agreements that are more limited in their substantive or geographic scope
than a specific MEA. For example, the Bamako Convention on the ban of the Import into Africa and the
Control of Trans boundary Movement of Hazardous Wastes within Africa and Convention on the
Conservation and Management of Fishery Resources in the South-East Atlantic Ocean are complementary
treaties to the Basel Convention on the Control of Trans boundary Movements of Hazardous Wastes and
Their Disposal and Convention on the Law of the Sea respectively.

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In the general international law arena, several disputes may be raised to illustrate that this

is a real problem. In the environmental field, however, the Southern Bluefin Tuna case

pitting Japan against Australia and New Zealand is one specific example. In 1993, the

three states concluded a convention over the conservation and management of southern

bluefin tuna stocks. The agreement contains a typical consensual dispute settlement

clause that is found in many environmental agreements in stating that in case of dispute,

“…with the consent in each of all parties to the dispute, [it will] be referred for settlement

to the International Court of Justice or to arbitration”29.

As often happens, the parties could not agree to have the dispute referred to the ICJ or

arbitration. However, all three states were also parties to the LOS convention. All of them

have also filed an optional declaration accepting the jurisdiction of the ICJ under Article

36(2) of the court’s statute. Accordingly, Australia and New Zealand could have brought

the dispute concerning Japan’s unilateral actions to at least three fora: an ad hoc Arbitral

Tribunal constituted under Article 16 of the 1993 Convention, the ICJ, or the dispute

settlement procedures of the UNCLOS30.

Under the LOS convention, states have a general duty to peacefully settle disputes under

the Convention by any means they can agree up on. However, if settlement is not

reached, and the parties have explicitly excluded no other procedure, either party is

entitled to trigger the compulsory dispute settlement procedure.

29
Convention for the Conservation of the Southern Bluefin Tuna, Aust.-N.Z-Japan,10 May 1993,1819
U.N.T.S. 359, art.16
30
States are always free to choose whatever peaceful method they want to settle disputes, including
diplomatic means. The principle of the free choice of means is enshrined in Article 33 of the UN Charter.

17
18

As Australia and New Zealand instigated the LOS procedure, Japan made a preliminary

objection on the ground that the parties have already agreed to submit the dispute to the

settlement procedure under the 1993 convention. The question arose as to which

procedure has jurisdiction over the dispute; the one under UNCLOS providing for

unilateral activation (i.e. the compulsory paradigm), or the procedure in the 1993

Convention providing for agreed up on activation (i.e. the consensual paradigm)?

Two separate adjudicative bodies looked in to the question and reached antithetical

conclusions. First, the International Tribunal for the Law of the Sea (ITLOS) considered

the matter while deciding whether it could order provisional measures pending

constitution of an annex 7 ad hoc Arbitral Tribunal 31.It found that the fact that the 1993

Convention applied to the parties did not preclude them from recourse to the dispute

settlement procedures of the LOS convention. According to the tribunal, the LOS

Convention would be overridden only in the event that the parties could agree to submit

the dispute to arbitration under the 1993 convention.

The ad hoc Arbitral tribunal constituted thereafter found differently. It concluded that it

lacked jurisdiction and dismissed the case holding that the absence of an express

exclusion of any procedure is not decisive for the purpose of the UNCLOS. According to

the ad hoc tribunal, the fact that Article 16 makes resort to binding settlement conditional

31
Southern Bluefin Tuna cases (N.Z. V. Japan ; Austl. V.Japan), (1999), provisional measures 38 I.L.M.
1624 (ITLOS)

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19

up on agreement makes it clear that it was the intent of the parties to remove proceedings

from the reach of compulsory procedures of the LOS Convention32.

As regards these two decisions, the question of paramount importance for the purpose of

this paper is; how would the situation be dealt with had the 1993 convention incorporated

compulsory dispute settlement system? Would it make any difference if the procedure in

the UNCLOS had been a non-binding compulsory conciliation, as this is the typical

settlement procedure incorporated in most MEAs?

In the absence of jurisprudential hint on this specific issue, resort to the judicial practice

on disputes touching up on interdisciplinary legal regimes would yield some suggestions.

2.3 The problems of fragmentation in inter disciplinary legal regimes

With regard to certain disputes touching up on both aspects of trade and environment, the

procedures of compulsory dispute settlement incorporated under MEAs conflict with

those in the trade regime, specifically those of the WTO. A single dispute, or aspects

thereof, may involve issues that would appear to be of relevance to the dispute-

32
Southern Bluefin Tuna (N.Z. V Japan, Austl. V Japan), (2000) , Jurisdiction and Admissibility , 39 I.L.M.
1359 (Award of the Arbitral Tribunal)

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settlement provisions of a MEA, while the same governmental actions also affect trade

and are thus WTO matters covered under Article 23 of the DSU.

An actual example of the problem in this regard has presented itself in the Swordfish

case33. In this case, a dispute arose between the EU and Chile over the Chilean measure of

preventing the EC vessels from transshipping and/or landing their catches of highly

migratory species (such as swordfish) in Chilean ports .The EU filed an application to the

Chairman of the WTO Dispute Settlement Body for the establishment of a panel on the

ground that the Chilean measure violates Article 5 of the General Agreement on Tariffs

and Trade, which deals with freedom of transit, and GATT Article 11, dealing with

eliminating quantitative restrictions. When the EU obtained the establishment of a WTO

panel, Chile in turn, initiated proceedings before the International Tribunal for the Law of

the Sea, whose parent convention contains provisions relating to the conservation of

marine resources, on the ground that the EU has failed to cooperate with the coastal state

in ensuring the conservation of highly migratory species.

In January 2001, however, the EU and Chile reached a settlement providing limited

access for EU fishing boats to Chilean ports, scientific and technical co-operation on

conservation of swordfish stocks, and the establishment of a multilateral framework for

the conservation and management of swordfish in the Southeastern Pacific34.

33
Chile-Measures Affecting Transit and Importation of Swordfish, (Mar.23, 2001) WTO Docs. WT/DS193,
Online: WTO <http://docsonline.wto.org/gen_search/asp>; Case Concerning the Conservation and
Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean ( Chile/European
Community), (2000) Case No. 7, ITLOS, Online : Internet Guide to International Fisheries Law
<http://www. intfish.net/cases/fisheries/swordfish/index.htm>
34
Ibid.

20
21

Had the Swordfish case not been resolved through negotiation, it would have best

illustrated the problem we are dealing with in this paper.

The problems of multiple international judicial fora in the environmental field have also

been demonstrated by the MOX plant dispute between Ireland and the United Kingdom.

Here, three dispute settlement procedures-the 1992 Convention for the Protection of the

Marine Environment of the North-East Atlantic (OSPAR), the UNCLOS, and the ECJ

were able to address aspects of the same disputes35.In all the three cases, United Kingdom

could do nothing to oppose proceedings because it had given consent a priori when

ratifying the relevant conventions.

The MOX plant case demonstrates the increased overlap in the jurisdictions of

international courts and tribunals and the procedural possibilities and challenges that

ensue as a result. It entailed adverse implications in terms of time and resource

expenditures. It also sets the stage for the issuance of incompatible decisions which might

complicate the dispute rather than resolve it36.

In all these circumstances, the confrontation was between the compulsory binding dispute

settlement systems incorporated under the environmental regime and the same procedure

incorporated in the trade regime. The question then remains to be answered: How would

35
Dispute concerning Access to Information under Article 9 of the OSPAR Convention (Ir. v. U.K.), (2003),
42 I.L.M. 1118, Online: Permanent Court of Arbitration, < http://www.pca-cpa.org/PDF/OSPAR%20-
%20Decision%20no2.pdf>; Dispute concerning the Mox plant, International Movements of Radioactive
Materials, and the Protection of the Marine environment of the Irish Sea (Ir. V. U.K. ), (2003),42 I.L.M.
1187; The Mox Plant Case ( Ir. V. U.K.), 2001 ,(Interim Measures),Case No. 10, ITLOS,
Online:<http://www.itlos.org/cgi-bin/cases/case_detail.pl?id=10&lang=en>; Action brought on 30 October
2003 by the Commission of the European Communities against Ireland, ( case C-459/03), (2004)OJ /C 7/39
, Online: Official Journal of European Union, <http://europe.eu.int/eur-
lex/lex/JOHtml.do?uri=OJ:C:2004:007:SOM:EN:HTML>
36
Yuval Shany, “The First Mox plant Award: The need to harmonize competing environmental regimes
and dispute settlement procedures” , (2004), 17 Leiden J. Int’l L., 815

21
22

the situation be dealt with had the conflict been between the compulsory conciliation

system of MEAs and the trade regime dispute settlement system? Again, no state practice

conveys a hint on this specific issue.

In the remaining part of the paper, I will try to answer these questions after going through

the approaches adopted by the courts and tribunals in dealing with the problems

illustrated above.

3. Approaches to settling Disputes Involving Multiple Fora

When confronted with the problems arising out of the multiplication of dispute

resolution procedures with compulsory jurisdiction, courts and tribunals have not

adopted a consistent and well developed approach. There are no agreements offering

solutions to the problems discussed. Falling back on customary international law, the

general principles, and the case law of international courts and tribunals, though points

to some clues, doesn’t help much either. How ever, a careful survey of the most recent

scholarly literature and international practice points to some possible antidotes. It is not

the purpose of the paper to examine all these suggestions towards resolving the

paradox. However, in search of a solution to the problem of convergence of jurisdiction

between the compulsory conciliation and other compulsory dispute resolution systems,

I will try to elaborate on the dominating conjectures as related to the decision of the

tribunals that have handled the cases.

In entertaining environmental disputes between states litigating simultaneously or

serially on essentially the same dispute in multiple fora, the bulk of scholarly writings

22
23

and texts are geared towards two approaches: the self-contained regime and the

harmonization approach. We will be dealing with each one of these.

3.2. The Self-Contained Regime Approach

The self-contained regime approach was one of the approaches adopted by some courts

and tribunals confronted with the problems arising out of the multiplication of

international dispute settlement fora.A “self- contained regime” is a subsystem of

international law intended to exclude the application of other legal consequences more or

less, totally37.The study group on the fragmentation of international law established by

the ILC in 2002 has elaborated the concept of “self-contained regimes” as referring to a

“special set of secondary rules that determine the consequences of a breach of certain

primary rules …as well as any interrelated cluster …of rules on a limited problem

together with the rules for the creation, interpretation, application, modification, or

termination of those rules38.”

In the MOX plant case cited above, it is claimed that the OSPAR award represents an

important precedent in delineating the contours of self- contained treaty regimes by

allowing limited interaction between the OSPAR Convention and other environmental

regimes39.The OSPAR arbitration ruled on the separability of the “OSPAR dispute” from

other disputes on the ground that:

37
J. Combacau and D. Alland, “Primary and Secondary Rules in the Law of State Responsibility:
Categorizing International Obligations”, 1985,47 Netherlands Year Book of International Law, 117
38
International law commission, Fragmentation of International law: Difficulties Arising from the
Diversification and expansion of International Law,A/CN.4?L.682, Fifty-eighth session, Geneva, 13 April
2006,A/CN.4/L.682, 83
39
Supra, note 30, 816

23
24

“Each of the OSPAR Convention and Directive 90/313 is an independent legal source

that establishes a distinct legal regime and provides for different legal remedies40.”

On this ground, the tribunal rejected the relevance of the dispute settlement procedures in

the other regimes and other substantive international law norms on the right of access to

environmental information. An issue of great interest for our purpose is the panel’s

majority ruling that the OSPAR Convention is an isolated regime from parallel legal

regimes and that it has powers of review over the decision of the U.K.’s restriction on the

disclosure of information relating to the operation of the MOX plant. This represents the

clear recognition of the self-contained approach by the panel.

The ITLOS recognized the same approach in the Southern Bluefin Tuna case in

maintaining that:

“…But the Tribunal recognizes as well that it is a common place of international

law and state practice for more than one treaty to bear up on a particular dispute.

There is no reason why a given act of a State may not violate its obligations under

more than one treaty. There is frequently a parallelism of treaties, both in their

substantive content and in their provisions for settlement of disputes arising there

under….the conclusion of an implementing convention does not necessarily

vacate the obligations imposed by the framework of convention up on the parties

to the implementing convention41.”

40
MOX plant case (Ireland V. UK), (2003), 42 ILM 1187, OSPAR Arbitral Tribunal, para. 142 (Emphasis
mine)
41
Supra note 31,para 52

24
25

This indicates that there is a trend by international courts and tribunals to resort to the

“self-contained regime” approach in disposing cases that raise issues of multiple fora.

3.3. The Harmonization Approach

This view considers particular legal regimes not as a secluded island that should be

treated independently, but as part of the territorial domain of international law that must

adapt itself to the variety of fields with which it has to deal. It asserts that the substantive

provisions applied by specialized tribunals be construed in light of all relevant

international law norms on the matter.42

In the environmental field, the harmonious construction of international conventions by

international courts and tribunals is recognized as generally offering a more acceptable

method of regulating interaction between overlapping norms43. In the southern bluefin

tuna case discussed above, though the ITLOS endorsed the self-contained regime, the

arbitral tribunal established thereafter refused to consider the provisions of UNCLOS in

isolation from the regional fisheries treaty, thereby adopting the harmonious approach. In

recognizing this approach, it stated that:

“The parties to this dispute - the real terms of which have been defined

above -are the same parties grapping not with two separate disputes but

with what in fact is a single dispute arising under both conventions. To

find that, in this case, there is a dispute actually arising under UNCLOS

42
Supra note 36, 824
43
Ibid.

25
26

which is distinct from the dispute that arose under the CCSBT would be

artificial44.”

In June 2003, the arbitral panel in the UNCLOS MOX plant case also expressed a

compatible view with regard to the relations between UNCLOS and EC law .While it

accepted that there might be certain UNCLOS provisions which are not regulated by

parallel EC law provisions, it held that “there is no certainty that any such provisions

would in fact give rise to a self-contained and distinct dispute capable of being resolved

by the tribunal”45.

In combining the concern for procedural comity to the pro-harmonizing approach, the

panel stated that:

“In the circumstances, and bearing in mind considerations of mutual

respect and comity which should prevail between judicial institutions both

of which may be called up on to determine rights and obligations as

between two states, the Tribunal considers that it would be inappropriate

for it to proceed further with hearing the parties on the merits of the

dispute in the absence of a resolution of the problems referred to.

Moreover, a procedure that might result in two conflicting decisions on the

same issue would not be helpful to the resolution of the dispute between

the parties46.”

44
Supra note 32,para 54( emphasis mine)
45
Mox plant (Ireland V.UK), Order No.3 of 24 June 2003, Permanent court of arbitration, para.26, Online:
PCA <http:/www.pca-cpa.org/PDF/MOX%20Order%20no3.pdf >.
46
Ibid. para28

26
27

Such combination of a pro-harmonizing approach to the substantive applicable law and

procedural comity vis-à-vis competing procedures was hailed as the best way to reduce

the disharmonizing tensions associated with the specialization of international law and

sustain its coherence in the long run47.

Now, I will turn in to examining how, in the event of conflict between compulsory

dispute settlement mechanisms incorporated under MEAs and same procedures either in

the environmental regimes or other disciplines, the situation seems to be regulated.

3.4 Towards resolving the conflict in the MEAs context

As indicated in the first section, the specific compulsory dispute settlement system

incorporated in most MEAs is the non-binding compulsory conciliation system. This may

conflict with the dispute settlement system incorporated under complimentary treaties

with in the environmental regime. In such instances, countries may be subjected to the

same dispute in parallel proceedings. What solution is available to the panel in the

environmental fora confronted with this situation?

It is my opinion that a panel confronted with such kind of disputes should adopt the

harmonious approach in resolving the problem for the following reasons: first, in general

terms, it is argued that the increased normative density of international law and the

growing number of competent international courts and tribunals presents a rising need to

47
Supra note 35,824

27
28

harmonize international rights and obligations regulating the same subject matter48.This

assertion would be so realistic in such conflicts because, despite their geographical

specificity or substantive limitations, complimentary treaties address the same subject

matter as MEAs. Under this situation, it is hard to say that a dispute arising under MEAs

and its complimentary treaty address different subject matters.

Second, it is hard to say that a specific MEA, usually with a legal regime of limited

normative and institutional density, posses any unique feature that would justify isolating

its dispute settlement system from that incorporated under parallel complimentary legal

regimes such as the CCSBT. This is because, most of the times, complimentary treaties

do not have unique objectives, remedies, or, for that matter, unique dispute settlement

procedures.

Thirdly, pursuing parallel proceedings in such instances might give rise to inconsistent

judicial decisions. It also leads to unnecessary litigation and opens the door for

manipulating the international legal process. In this regard, the remark by the UNCLOS

panel in the MOX plant case cited above is of particular importance.

Therefore, when an environmental dispute settlement forum is seized by the problems of

multiple fora in entertaining disputes touching up on two complimentary treaties, both of

which have incorporated compulsory dispute settlement system, it should make a

harmonious construction of the law in a way to establish a single dispute that can be

entertained on a single channel.


48
Ibid. 823

28
29

It would be worth examining the situation where a competition may arise between the

dispute settlement system in the MEAs and the ICJ, due to an optional declaration of

acceptance of the ICJ’s jurisdiction. In this regard, the choice of the proper forum

depends on assessing the significance of adopting each of the approaches in entertaining

environmental disputes.

Of course, there are probabilities that the countries, even if have made the optional

declarations, might not be subjected to the compulsory jurisdiction of the ICJ. This

happens because, usually, in making optional declarations, countries have conditions

excluding compulsory jurisdiction for disputes where there is provision to use alternative

methods of settlement. Even if the countries have not made such a declaration and hence,

are subject to its jurisdiction, the applicant country may not want to refer the matter to the

ICJ. This may be a possibility in light of the unsatisfactory environmental case law of the

ICJ, which commended against its selection in most of the times49.

If however, under the circumstances described above, the claim happens to be initiated in

the MEA forum and the ICJ, which will be the legitimate forum to dispose the dispute?

The PCIJ has faced a related dilemma in the Electricity Company of Sofia and Bulgaria

case, where it was confronted with two different sources of jurisdiction: a Belgian-

Bulgarian treaty of conciliation, arbitration and judicial settlement, and the optional

49
Cesare Romano, “The Southern Bluefin Tuna Dispute: Hints of a World to Come… Like It or Not”,
Center on International Cooperation (2001),320 Online: Project on International Courts and Tribunals
<http://www.pict-pcti.org/publications/articles_paprs.html>

29
30

declarations by the two countries 50.The court has decided in favor of assuming

jurisdiction on the ground that “the parties, through the multiplicity of agreements they

concluded, do not have the intention of taking the court’s jurisdiction away and weaken

the obligations which they had previously entered in to with a similar purpose….to allow

them to cancel each other out with the ultimate result that no jurisdiction would

remain”51.

Although any speculation on how the ICJ would decide had the tension been between the

compulsory conciliation incorporated under the MEA and the ICJ is moot, the acontrario

inference from the above reasoning court seems to suggest suspension of the proceeding

up until the case is decided by the MEA procedure, as has been done by the ITLOS in the

MOX plant case. This is so because: first, in this particular situation discussed, the

purpose of resorting to the MEA procedure will neither “weaken their obligation” nor

“cancel each other [the procedures] with the ultimate result that no jurisdiction would

remain”. In light of this, it is unlikely that the ICJ would claim jurisdiction in such cases.

Second, the MEA procedure is better suited to handle environmental disputes and as

explained above, represents a viable alternative to the more formal means of dispute

settlement. Though the ICJ established an Environmental Chamber valuing special forum

for environmental disputes, this doesn’t seem to serve any practical purposes for different

reasons and in fact, the chamber has not yet entertained any environmental disputes52.

50
Electricity Company of Sofia and Bulgaria, 1939 P.C.I.J. (Ser. A/B) No. 77(4 Apr.), 4
51
Ibid. 76
52
For the arguments against the effectiveness of the Environmenta1 Chapter of the ICJ, read P.R. Romano,
cited above at note 4, 125

30
31

This suggests that the MEA procedure would establish jurisdiction, though it may refer

the case back to the ICJ to decide on jurisdiction (for the sake of mutual respect and

procedural comity).

The other issue concerns the problem of forum selection in interdisciplinary legal

regimes. In this context, the issue at hand is the dichotomy between the dispute settlement

systems incorporated in the trade regime, particularly, the WTO system, and the

compulsory conciliation system in MEAs. In this regard, there is no jurisprudential

evidence touching up on the issue that can provide a clue. The Swordfish case mentioned

above could have provided some hint, but as indicated above, it has ended up with

negotiations between the two disputant states.

In light of the justifications behind each of the approaches designed to deal with similar

situations, it is my view that in this regard, the “self-contained regime” approach is the

option that will yield a better solution. First, all the justifications mentioned in favor of

harmonizing the disputes in the above circumstances are absent in this specific instance.

WTO members have declared the WTO fora as exclusively mandated to adjudicate trade

disputes. Hence, the object and purpose of MEA’s mechanism differs from those of the

WTO and thus in the above circumstances, it is difficult to say that the two fora are

dealing with the same subject matter.

This leads to the conclusion that while a MEA party is the subject of a dispute-settlement

process for its actions or in actions, the same governmental actions could be examined

31
32

before a WTO adjudicating body, pursuant to an allegation of a WTO violation. Under

the circumstances, the two institutions could reach different conclusions on factual

aspects or on the interpretation of the MEA’s provisions. In this case, the question on

how MEA members subjected to compulsory conciliation and also to the WTO should

deal with the various aspects of a dispute when findings from these fora can lead to

inconsistent decisions still remains unanswered.

In this regard, the 1996 report of the WTO Committee on Trade and Environment (CTE)

stipulated in its conclusions and recommendations that:

“If a dispute arises between WTO members, parties to a MEA, over the

use of trade measures they are applying between themselves pursuant to

the MEA, they should consider trying to resolve it through the dispute-

settlement mechanisms available under the MEA53.”

The message of the report was that first the parties settle the dispute through the MEA

and only as a last resort would use of the WTO be made. This, however, has seriously

been opposed by the members on the ground that it would undermine their right under

Article 23 of the DSU54.More over; the report has, at best, solely the legal value of

recommendation of the WTO CTE, which would find relevance in a WTO panel, but

does not constitute an amendment to Article 23.Therefore, in the absence of any

agreement between the parties to submit the dispute to a particular forum and short of any

53
Report of the committee on Trade and Environment (1996) (WT/CTE/1), World Trade Organization
<http://docsonline.wto.org/GEN_searchResult.asp> Para. 178
54
Magda Shahin, “Trade and Environment in the WTO: Achievements and Future prospects”,
(1997),Online: Third World Market , <www .twside.org.sg/title/ach-cn.htm>

32
33

international rule as to how these different mechanisms interact, it is likely that a single

dispute may be subjected to the parallel compulsory process of both the MEA and WTO

systems and in fact, different findings.

This, however, is one asset of the self-contained regime that encourages specialization

and ensures that courts do not overreach and encroach on less familiar legal regimes

governed by other dispute settlement bodies55. In this context, the significance of this

approach is that the MEA dispute settlement system would be able to retain proper

ownership of the applicable disputes. Under the circumstances, it is difficult to say that

the two proceedings relate to the same subject matter that would yield the same results.

This point is better elaborated in the decision of the ITLOS in the MOX plant case which

held that:

“The dispute settlement procedures under the OSPAR Convention, the EC

Treaty and the Euratom Treaty deal with disputes concerning the

interpretation or application of those agreements, and not with disputes

arising under [UNCLOS]…Even if the OSPAR Convention, the EC

Treaty and the Euratom Treaty contain rights or obligations similar to or

identical with the rights or obligations set out in [UNCLOS], the rights

and obligations under those agreements have a separate existence from

those under [UNCLOS]…The application of international law rules on

interpretation of treaties to identical or similar provisions of different

treaties may not yield the same results, having regard to differences in the
55
Supra note 36,823

33
34

respective contexts, objects and purposes, subsequent practice of parties

and travaux pre`paratoires56.

It is my view that the same explanation will hold true as to the relationship

between the obligations of the parties under the WTO and the MEA and therefore,

the MEA dispute settlement system can operate as a self-contained regime with

regard to environmental matters. The MEA system has unique features justifying

its isolation from the trade regime. It has unique environmental protection

objectives and remedies and in fact, as explained above, the system itself

(Compulsory conciliation) is a different procedure than that of the WTO system.

Conclusions

Due to the lack of homogeneity in the judicialization of international relations; the

international community is facing a disturbing phenomenon of litigation in multiple fora,

serially, or in parallel of essentially the same disputes. This raises the risks of

56
MOX Plant, Order of 3 Dec. 2001, ITLOS, at para.49-51, Online: International Tribunal for the Law of
the Sea, <www.itlos.org/start2_en.htm.

34
35

litispendence and forum shopping and undermines the ultimate rationale of international

judicial proceedings: closure and settlement. The complexity is much conspicuous when

the confrontation is between compulsory dispute settlement fora.

Granted, the various fora will not necessarily reach different conclusions as to the

underlying points of law or the dispute, nor are the cases the same, legally speaking,

different aspects of the dispute might be considered, different violations of different

norms might be invoked. This holds true in certain cases of interdisciplinary disputes

involving trade and environment and its adoption is to be decided on case by case basis,

as it may not be so in all the times. Yet, still, it makes the current state of affairs

unsatisfactory, as it falls short of one of the fundamental overarching goals of judicial

proceedings (be they domestic or international): closure. It also goes against the grain of

other fundamental legal principles like certainty of law, and encourages opportunistic

state behavior bordering abuse of rights, in defiance of the principle of good faith.

On the other hand, the adoption of the harmonization approach coupled with the concern

for procedural comity facilitates the mitigation of jurisdictional conflicts, reduces the risk

of conflicting judgments, and helps to protect the coherence of international law. As

suggested in the above analysis, however, there could be instances that spur a tribunal

handling an environmental dispute to resort to the self-contained approach rejecting the

harmonization approach.

35
36

Adopting any of the approaches wouldn’t solve the problems totally. However, a

thorough analysis geared towards the choice of the appropriate approaches based on the

considerations suggested would alleviate the grim consequences that ensue from the

proliferation of international courts and tribunal. Ultimately, there is a need for the

elaboration of the concept through further researches and inquiry in to the practices

developed by the various courts and tribunals dealing with related cases.

36
37

37