Worldwide: Spotlight On International Arbitration As A Means Of Settling Disputes Arising From Climate Change

Introduction

"Essentially what is at stake at this climate conference is peace".

Those were the words uttered by French President François Hollande to signify the importance of COP21 – the 21st Conference of Parties to the United Nations Framework Convention on Climate Change (UNFCC) held in Paris to address climate change in December 2015. Indeed, a study by the Pew Research Centre in the run up to COP21 found that climate change is considered to be the greatest threat to humanity by some distance. In a bid to address this threat, negotiators from 195 countries succeeded in adopting a universal, comprehensive climate agreement at COP21 (Paris Agreement).

However, the President of the International Bar Association (IBA), David W Rivikin said, "One of the greatest challenges for the negotiators is to persuade stakeholders that commitments will be enforceable beyond COP21". It has been suggested that arbitration can help with the enforcement of states' obligations to reduce their carbon emissions and resolve other disputes arising from climate change. An International Court for the Environment has also been mooted especially to deal with complaints from climate-vulnerable people who may not be parties to an arbitration agreement. This includes people affected by rising sea level who may lose their homes, for example in Bangladesh or in the Maldives. In this note, the authors examine the extent to which arbitration can be an effective tool to settle disputes arising from climate change.

Arbitration to fill the enforcement lacuna

Recognising that commitments arising from the UNFCC may not be enforceable, Mr David W Rivkin suggested that this 'lacuna' could be filled by consensual international arbitration. He alluded to the IBA's report on Achieving Justice and Human Rights in the Era of Climate Disruption (IBA Report) published in 2014, which recommended the use of arbitration as a means of settling disputes arising from climate change.

National courts are not a viable forum for climate change related disputes involving parties from multiple jurisdictions, because of the potential for political fall-out as a state may not recognise judgments handed down by another state's courts. International forums are better equipped to 'arbitrate' such disputes, for example, the Permanent Court of Arbitration (PCA), which is discussed further below.

The UNFCC as it currently stands does not specifically endorse arbitration or any international forum as a means of resolving disputes arising from climate change. Inarticle 14, the UNFCC says that "parties shall seek a settlement through negotiation or any other peaceful means of their own choice". Negotiation has been the key feature in achieving a climate change agreement and arbitration could be a "peaceful means" of settling disputes. Indeed, arbitration was used as a means of finding a peaceful solution to the civil war between the Government of Sudan and the Sudanese People's Liberation Movement/Army (the Abyei Arbitration).

Arbitration and climate justice

Arbitration is an attractive proposition because of the range of stakeholders and the types of disputes that it can accommodate. In the same way that investment treaty arbitrations are helping to create a uniform standard of sovereign behaviour towards investors, arbitration could also develop similar standards to help vulnerable communities impacted by rising sea level and other extreme weather events.

By way of example, it has been reported that without mitigation, Bangladesh could lose around 17% of its land by 2050 due to rising sea level, which may affect as many as 20 million people. A significant number of those affected are likely to be impoverished victims of climate change. Such victims are at the heart of the concept of 'climate justice' as highlighted by the IBA Report:

"...climate justice is a concept that recognises climate change will disproportionately affect people who have less ability to prevent, adapt or otherwise respond to increasingly extreme weather events, rising sea levels and new resource constraints... Climate justice seeks to combine the climate change discussion with human rights in a way that is equitable for the most climate-vulnerable groups."

Climate change impacts and the human rights of some of the world's most marginalised populations go hand in hand. Human Rights Watch (HRW) recently highlighted the case of the climate-vulnerable people of Turkana, Kenya, whose basic human rights including the rights to water, food and health are threatened by climate change events such as severe droughts. HRW also reported on the increasing number of child marriages in Bangladesh among farmers who are securing husbands for their daughters before they lose their land.

Arbitration could be an effective means to enforce international human rights standards in the context of disputes arising from climate change. Affected populations could participate in the arbitral process provided that they are permitted to do so pursuant to the arbitration rules or agreement. Non-parties may, in exceptional cases, participate in arbitration at the invitation of tribunals or as witnesses or observers. The role of NGOs and civil society organisations will be important in representing the interests of climate-vulnerable populations.

The Permanent Court of Arbitration

Among the key advantages of using arbitration is that parties can choose arbitrators who have specific experience or expertise in climate change issues. The PCA, as an institution has developed significant experience in handling environmental/climate change related disputes. In 2001, the PCA released Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment. The IBA Report recommends the PCA as the preferred institution to handle international environmental disputes.

In the Arctic Sunrise case brought by the Netherlands against Russia, the PCA ordered Russia to pay compensation for its detention of Greenpeace activists who were protesting against oil drilling in the Arctic. The Russian authorities confiscated the Dutch-flagged Arctic Sunrise, which had 30 people on board. The PCA held that the Netherlands was entitled to compensation for damage to the Arctic Sunrise and that Russia had breached its obligations under the UN Convention on the Law of the Sea (UNCLOS).

The PCA administered the Bay of Bengal Arbitration brought by Bangladesh against India under UNCLOS. The maritime boundary dispute concerned an area in the Bay of Bengal that will be affected by sea level rise. The PCA awarded more than three-quarters of the disputed area to Bangladesh.

Other than disputes between states, the PCA also handles cases brought by investors against states. The PCA is currently administering a case brought by a Canadian investor Peter Allard against Barbados under the Canada-Barbados Bilateral Investment Treaty. Allard alleges that Barbados failed to implement its own domestic environmental laws, which has spoilt the environment leading to a loss of revenue from his eco-tourist facility.

Further, the PCA handled nine contract cases arising from the 1997 Kyoto Protocol to reduce greenhouse gas emissions of developed countries. These cases are confidential. Confidentiality is another feature of arbitration which may encourage parties, particularly businesses, to opt into it.

International Court for the Environment

Despite the PCA's successes in handling environmental disputes, there still remains a gap where climate-vulnerable populations who are non-parties may not be able to hold states and non-state actors accountable for environmental harm. Other international forums such as the International Court of Justice and the International Tribunal for the Law of the Sea also do not address this problem. This is why the idea of setting up an International Court for the Environment (ICE) has recently garnered attention.

The idea of a dedicated court with specific jurisdiction for hearing environmental claims has been proposed in recent decades, but met with various obstacles. However, providing climate-vulnerable people with a means of seeking justice at an international level has become a pressing need with extreme weather events becoming an ever increasing reality.

The IBA Report recommends that "developing focused scientific and technical expertise within an ICE could more efficiently and effectively address the pronounced challenges of climate change litigation". In the long term, the IBA Report recommends the creation of an ad hoc International Tribunal for the Environment which would build towards a permanent ICE. It suggests that the ICE could be modelled on the best practices of existing arbitral institutions such as the LCIA and the ICC.

Conclusion

The Paris Agreement is a landmark deal, because it brings together the entire international community for the first time to reach a comprehensive agreement to address climate change. Arbitration could be an effective tool to enforce states' commitments and provide sanctions for non-compliance. Arbitration has already been used to resolve a number of environmental/climate change related disputes especially under the auspices of the PCA. The major shortcoming in the PCA and other international forums is that they cannot usually handle cases involving non-parties. An International Court for the Environment could provide such individuals with a means of seeking redress.

Spotlight On International Arbitration As A Means Of Settling Disputes Arising From Climate Change

Originally published by Wolters Kluwer

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Khaled Moyeed
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.