A Note on the Settlement of Disputes under the Convention on Biological Diversity

Introductory : The settlement of disputes in international law

Since international environmental law of which the Convention on Biological Diversity (the CBD) is but a part, is an offshoot of public international law, it would be in order that the methods and means of settling international disputes are examined in brief. In this regard, the following points may be noted.

a)       The pacific settlement of disputes by states is and remains a goal and ideal of the rules of international law. This is particularly so after the traumatic experience of the two world wars.

b)       Since the rules and norms of international law are created and obeyed or disobeyed by states, and there is no coercive element as understood in the municipal sphere, there is no legal compulsion for the states to resolve their disputes peacefully.

 c)      A dispute, without dwelling upon the controversial distinction between legal and political disputes, is understood in terms of Permanent Court of International Justice ruling in the Mavromattis Palestine Concessions (Jurisdiction) Case (PCIJ, Series A, No.2, 1924, p.l 1) to be a disagreement over a point of law or fact, a conflict of legal views or of interests between two persons.

d)       Certain important provisions of international treaty law do exhort States to resolve disputes peacefully. Some of them are Art.2(3) and 33 of the UN Charter, the 1970 Declaration on Principles of International Law Concerning Friendly relations and Co-operation among States, the Pact ofBagota 1948, the European Convention for the peaceful Settlement of Disputes 1957, the Helsinki Final Act, 1975 etc.

e)       The provisions of treaties that relate to the methods which states are to adopt for pacific settlement of disputes do not usually lay down finding methods but leave these to be worked out by the states themselves. There is no inherent hierarchy with respect to the methods specified and no specific method required in any given situation. The methods by which pacific settlement of disputes could be achieved are usually indicated as:

i)  negotiation
ii)    inquiry

iii)   mediation

iv)    conciliation

v)    arbitration'

 vi)   judicial settlement

vii)   resort to regional agencies or arrangements

f)       Some of the above pacific methods of dispute settlement have been more formalised than the rest, particularly judicial settlement, with the development of the jurisprudence of the International Court of Justice and arbitration, with the Permanent Court of Arbitration system and the formulation of model rules.

g)       States have been and would be reluctant to present what is seen as their vital interests for determination by third parties

h)       International disputes have been over territory, resources, liability for harm caused and other perceived violations of the rules and norms of international law.

Settlement of Disputes in the field of International Environmental Law

Certain broad features of international environmental disputes have been identified. These are:

i)        International environmental disputes refer to disagreements or conflicts of views or interests between States relating to the alteration, through human intervention, of natural environmental systems. International environmental disputes have hitherto primarily involved issues of pollution.

 ii)      Environmental problems tend to involve situations in which our knowledge of the facts is particularly limited and our assessments of risks particularly uncertain.

iii)       Environmental problems tend to raise particularly complex and difficult situations of social choice - problems of balancing benefits and gains, apportioning costs, trade-offs, etc.

iv)      It is difficult to deal with environmental problems through traditional legal approaches because these problems have multiple sources, multiple victims, causation is hard to prove and the damage is hard to establish or calculate v)    Environmental problems pose threats of a unique kind. The number of people affected, the importance of the interests at stake, the long time-periods involved and in the extreme, the threat to human survival itself make for the uniqueness of environmental problems.

In sum, this is thought to be a wholly different order of problem from those with which International law is usually concerned.

International environmental law has dealt with environmental disputes depending upon the sector of the environment affected - the atmosphere, the oceans, bio diversity, wildlife, etc.So environmental disputes may be classified on the basis of the following factors :

i)        What the dispute is about - facts, the assessment of these facts, the interpretation or application of existing rules, or what the rules should be;

ii)       Whether the dispute relates to conduct which itself has environmental consequences, or concerns claims of jurisdiction to control or regulate environmentally relevant conduct;

iii)       The interested parties - States, groups of States, international organizations, or private individuals or associations; i

iv)      The geographical scope of the dispute - primarily local, regional or global;

v)       The sector or area of the environment affected - the land, an international river or lake, the ocean, the atmosphere, outer space, or several of these;

vi)      The nature of the polluting agent and where the source is located;

vii)      The character of the conduct giving rise to the dispute - intentional or unintentional, one time only or continuing, and so forth;

viii)     The character of the harm involved in the dispute-localized or widespread, direct or subtle, immediate or long run;

ix)      The kind of remedy sought and against whom - money damages, an order to do or not do something, or a declaratory judgment, directed to a State or to some person or association.

The Settlement of Disputes under the CBD :

The CBD as an instrument addressing concerns of the conservation and sustainable use of biological diversity, is a framework agreement in two senses. It leaves the parties to determine how most of its provisions are to be implemented. It also leaves room for the Conference of the Parties to further negotiate annexes and protocols. The main decision-making processes are at the national level. The provisions of the Convention are to be implemented predominantly by the evolution of laws and legal institutions at the national level by each Contracting Party. Perhaps the most controversial among the CBD's provisions are those relating to the access to genetic resources (Art. 15) and access to an Transfer of Technology (Art. 16). These matters are also to be addressed by legislative, administrative or policy measures by the contracting parties.

As regards dispute settlement. Art. 27 of the CBD refers to the classical methods of internal dispute settlement. Art 27.

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 anytime 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 paragraph 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. From the above, it is clear that there is a clear order in which the dispute settlement procedures are to be followed. Detailed procedure for arbitration and conciliation are contained in Annexes I and II to the Convention.

In the Indian context the Draft Bill identifies the National Biodiversity Authority as responsible for regulating access to the country's bio-diversity and related matters. Conditions for access, permissions and prohibitions would be regulated by the NBA. In the absence of a specific provision in the Bill regarding dispute settlement bodies, one presumes they shall be the ordinary civil courts. This presumption is based on the overarching ambit ofS.9, C.P.C, which reads :

Courts to try all civil suits unless barred- The Courts shall... have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. In this context, it must be asked. Are the ordinary civil courts capable of tackling issues of access to genetic resources, transfer of technology, benefit sharing etc.? Before giving a quick answer, it is worthwhile noting the observations of the Supreme Court in A.P.P.C.B v M. V.Nayadu (AIR 1999 SC 912)

The Court in that case observed that the difficulty faced by environmental courts in dealing with highly technological or scientific data appeared to be a global phenomenon. The Courts' ability to handle complex science rich cases has recently been called into question, with widespread allegations that the judicial system is increasingly unable to manage and adjudicate science and technology issues. Critics have objected that Judges cannot make appropriate decisions because they lack technical training, that the jurors do not comprehend the complexity of the evidence they are supposed to analyse, and that the expert witnesses on whom the system relies are mercenaries whose biased testimony frequently produces erroneous and inconsistent determinations. If these claims go unanswered, or are not dealt with, confidence in the judiciary will be undermined as the public becomes convinced that the Courts as now constituted are incapable of correctly resolving some of the more pressing legal issues of our day. The Court observed that uncertainty of scientific opinions had created serious problems for the courts. While scientists could refine, modify discard variable or models when more information became available, Courts had to make choices based on existing scientific knowledge.

Conclusion: It is therefore clear that the Courts are themselves increasingly unsure about their abilities to handle disputes involving complicated issues of science and technology. In this context, it is with caution that one must proceed to determine a dispute settlement procedure that, while working in consonance with the spirit of the CBD, can also satisfactorily determine the issues at hand.

References

Articles:

1.              Bilder, Richard B., The Settlement of Disputes in the Field of the International Law of the Environment, Recuil,  Vol.144, 1975, p. 149.

2.              Sohn, Louis, Settlement of Disputes Relating to the Interpretation and Application of Treaties, Recuil, Vol.  150, 1976, p. 194.

Books:

 1.   Glowka, L, et al., (1994), A Guide to the Convention on Biological Diversity, IUCN, gland and Cambridge, xii +161 pp.

2.  Kothari, Ashish, Understanding Biodiversity, Orient Longman Limited, Hyderabad, 1997.

3.     Shaw, Malcolm N., International Law, 4th ed., Cambridge University Press, Cambridge, 1997.