Cross-Border Environmental Conflicts: Legal Mechanisms and Inclusive Solutions

The Authors, Bhumesh Verma is Managing Partner, Corp Comm Legal, Delhi and Parth Verma is 4^th Year BBA LLB (Hons) Student, Christ (deemed to be University), Bengaluru

i) Introduction

In recent years, environmental disputes among the countries have been on rise. However, the municipal laws, owing to the stark differences in thresholds, fail to effectively deal with such disputes. In such circumstances, the only recourse left with the member states is to resolve these disputes through internationally recognized dispute settlement mechanisms. In recent years, however, the implementation of the International Environmental Law Regime has been insufficient due to the absence of clarity regarding dispute settlement mechanisms. Further, there is also ambiguity with respect to the involvement of third parties, such as NGOs and environmental Associations in such disputes. This article shall analyze the existing dispute settlement mechanisms and legal framework concerning the same. At the same time, the extent of third-party involvement, apart from that of the member states, shall also be delved into.

ii) Classification of International Environmental Disputes

There is no clear definition of an International Environmental Dispute. However, renowned research scholars such as RB Bilder have defined it as any disagreement or conflict between states relating to alteration through human intervention of natural environmental systems.^[3] However, this definition is restrictive in nature, including only inter-governmental conflicts. Yet these disputes were provided with an international dimension that was much on the lines of the Trail Smelter case.^[4] This effectively leads to non-participation in the International Regime of those groups that can be the principal stakeholders in these environmental concerns.

Broadly, based on the traditional characterization, there are dispute settlement mechanisms to deal with disputes between two or more member states with respect to their obligations under International Agreements.^[5] A tribunal is constituted to hear the disputes.

On the other hand, non-compliance systems are present in many multilateral environmental agreements (MEAs) where a party’s failure to comply with the obligations damages the integrity of the regime itself rather than causing direct harm to a single country.^[6] This is applicable not only to member countries but even to private parties carrying out environmentally harmful acts.

iii) Dispute Settlement Bodies

The dispute settlement mechanisms include a large number of tribunals where International Environmental disputes can be referred to. This includes the International Court of Justice, which has jurisdiction specifically provided for under Article 36^[7] of the ICJ Statute. It shall have the jurisdiction over any matter that the parties may refer to it and environmental disputes shall also fall within its purview. Some of the landmark cases included Hungary v. Slovakia (Gabcikovo-Nagymaros case)^[8], wherein the ICJ applied certain environmental principles such as ‘ecological necessity.’ The Court also accepted that concerns for the natural environment represented an ‘essential interest’ of a state, providing that norms of environmental law had to be taken into consideration in implementing the treaty and – most importantly – that later developments in environmental law and standards should be taken into account when addressing activities begun in the past.

Apart from the International Court of Justice, there are several other dispute settlement bodies, including the European Court of Human Rights, the WTO Dispute Settlement Body, and the International Tribunal of the Law of the Seas. The International Tribunal on Law of Seas has, over the years, gained much more prominence for environmental dispute settlements after being established in 1996. The Southern Bluefin Tuna case^[9] has been landmark in this respect. In this case, owing to declining profits in the tuna industry, Japan unilaterally implemented a fishery of 1500 tonnes in an area covered under the Convention for the Conservation of Southern Bluefin Tuna. After protests, Australia and New Zealand requested ‘provisional measures’ – an interim injunction – to prevent the fishery. International Tribunal held that it had the requisite jurisdiction over the dispute and ruled against the unilateral measures adopted by Japan.

Hence, these are some of the major bodies for adjudication of International Environmental disputes and are only restricted to state organs.

iv) Environmental Disputes Settlement Mechanisms

As per Article 33 of the UN Charter, 1945^[10] all disputes shall be settled by the conciliation, mediation, or arbitration by judicial agencies mentioned in the previous section, apart from other regional arrangements. Several International Environmental Agreements applicable throughout the world have a dispute resolution clause in their structures. On the basis of these structures, several dispute resoltion mechanisms have been provided which are as follows:

1. Conciliation

This form of dispute settlement mechanism is generally accommodated under environmental treaties. The 1992 Biodiversity Convention^[11] has even mandated conciliation for dispute settlement. Some other instances include The Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2002^[12], and the United Nations Framework Convention on Climate Change, 1992.^[13] Under this mechanism, there is generally a third party investigating the factual aspects presented by both parties and thereafter formulating a proposal for resolution of disputes.

Additionally, the Permanent Court of Arbitration has provided a uniform set of rules for settlement of International Environmental Disputes. These are known as Optional Rules for Conciliation of Disputes Relating to Natural Resources and/or the Environment, 2002^[14], which are based on the lines of UNCITRAL Conciliation Rules, 2002. These rules primarily focus on ensuring increased flexibility and party autonomy with respect to the issues regarding the utilization of natural resources, conservation of the environment, state sovereignty and cooperation for environment conservation, etc. These rules can be accessed not only by state parties but also by private entities, international environmental associations, and other non-state entities for amicable settlement of disputes. Hence, these shall be used as a pre-requisite to arbitration.

2. Arbitration

This is a corollary to litigation. However, it's an alternate dispute resolution mechanism. An arbitrator is appointed through an agreement between parties and shall pass an award binding on the parties. The application of procedural and substantive laws shall be as per the will of the parties, but the decision shall still be considered binding at the international level. There are several international instruments that prescribe a preference to arbitration over traditional judicial settlement mechanisms. Examples of the same include 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora^[15] and the Convention on Conservation of Migratory Species of Wild Animals, 1979.^[16]

v) Landmark Judgements

1. Iron Rhine Arbitration^[17]

The Iron Rhine Arbitration between Belgium and the Netherlands revolved around the reactivation of a historic railway, the Iron Rhine, which runs through Dutch territory but was originally built to give Belgium access to the German industrial heartland. Belgium wanted to reopen the railway to modernize it for transport, but the Netherlands insisted that any reactivation would need to comply with its environmental regulations. The crux of the issue was whether the Netherlands could impose its environmental impact study requirements without infringing on Belgium's right to transit. The tribunal ultimately found that while the Netherlands could enforce its environmental laws, these regulations could not obstruct or significantly hinder Belgium’s transit rights. In essence, the ruling struck a balance between respecting national regulations and upholding international agreements, allowing Belgium to move forward with the project without unnecessary legal barriers.

2. Indus Waters Kishenganga Arbitration^[18]

The Kishenganga Arbitration (2013) addressed a dispute between Pakistan and India over a hydroelectric project on the Kishenganga/Neelum River, a tributary of the Indus. India planned to divert water for power generation, while Pakistan objected, claiming it violated the 1960 Indus Waters Treaty. The key issues were whether India's planned water diversion was permissible under the Treaty and what minimum flow India must maintain in the river. The Permanent Court of Arbitration ruled that India could proceed with the project, as the Treaty allows inter-tributary water transfer for power generation. However, it mandated that India must maintain a minimum flow of 9 cubic meters per second in the Kishenganga/Neelum riverbed at all times to protect Pakistan's water needs with respect to water for agricultural purposes.^[19] This decision balanced India's right to hydroelectric development with Pakistan's water rights, setting a precedent for interpreting the Indus Waters Treaty in future disputes.

3. Southern Bluefin Tuna Cases^[20]

The Southern Bluefin Tuna Cases (1999) centered on disputes between Australia, New Zealand, and Japan concerning the conservation and management of Southern Bluefin Tuna (SBT) in the South Pacific. The conflict emerged when Japan unilaterally implemented an experimental fishing program, which Australia and New Zealand argued violated the 1993 Convention for the Conservation of Southern Bluefin Tuna (CCSBT). The key issues were whether Japan's experimental fishing program breached its obligations under the CCSBT and UNCLOS, and the extent of the International Tribunal for the Law of the Sea (ITLOS) jurisdiction in this matter. ITLOS initially ordered provisional measures, requiring all parties to cease experimental fishing and maintain their annual catches within previously agreed levels. However, an arbitral tribunal subsequently ruled that it lacked jurisdiction to hear the case's merits, as the dispute primarily fell under the CCSBT rather than UNCLOS. This case underscored the tensions between scientific research, fisheries management, and international legal obligations, while also raising questions about the interplay between different international legal regimes.

vi) Conclusion

The adverse effects of climate change in recent times has had a direct impact on cross broder environmental disputes constantly increasing. While there are laid out frameworks on settlement of such disputes, there is still ambiguity and lack of clarity in respect of their scope and applicability. At the same time, dispute settlement bodies such as ICJ, WTO consider only state actors and don’t take into purview any of the third parties or non-state actors which can ideally have a substantial interest in such disputes or impending issues. There have been instances of arbitration and conciliation being put to use for adjudicating environmental disputes and the Trail Smelter Case, Kishenganga case, etc are a testimony to this fact. Hence, in the long run key lies in balancing national interest with international obligations through clearly defined mechanisms that will in turn allow participation of even non-state actors in the process thereby fulfilling broader environmental obligations.

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