AbstractInternational environmental disputes frequently have characteristics that distinguish them from other kinds of international disputes. Such characteristics of international environmental disputes include the following. Firstly, a dispute may be bilateral, multilateral or hybrid in character. Secondly, international environmental disputes frequently have a multi-dimensional character which includes the complexity of the scientific or technical information associated with a dispute and the complexity of questions relating to social, economic and political choice. Thirdly, international environmental disputes may entail difficulties in identifying the source of the alleged breach of an international environmental obligation. Fourthly, international environmental disputes may involve complex questions of quantifying damages. Lastly, international environmental disputes may involve the interpretation and application of procedural obligations. International environmental obligations of a procedural character.
Given the characteristics of international environmental disputes, this thesis aims to study the suitability and effectiveness of the existing third-party mechanisms in settling such disputes. This thesis attempts to find suitable means by examining the nature of each dispute settlement mechanism and making an evaluation in order to find out how each mechanism can provide processes or procedures that correspond to the special characteristics of environmental disputes. With regard to the question of effectiveness, criteria of effectiveness will be established and then each of the mechanisms will be assessed in the light of those criteria. This thesis also proposes some recommendations that would have a chance of being carried out in practice in order to address problems or drawbacks that appear to be an obstacle to the better resolution of international environmental disputes.
This thesis shows that judicial means are suitable for deciding bilateral environmental disputes and interpreting and applying procedural obligations. They are not suitable for deciding cases involving multiple parties, multidimensional disputes, quantifying environmental damages or identifying the sources of breach of environmental obligations, except ad hoc arbitration where parties can set up arbitral procedures which suit a specific characteristic of the environmental disputes at issue. Diplomatic means are suitable for deciding bilateral and multilateral disputes, multidimensional disputes but they are not suitable for awarding environmental damages and interpreting and applying procedural obligations. As far as the effectiveness is concerned, this thesis shows that most of the disputes brought before judicial and non-judicial means were settled and the parties complied with the judgments, awards, findings and recommendations. However, in most cases, they have had only a limited impact on the behaviour of the parties in the sense that they were not successful in changing States’ behaviour so discourage future violations and deter the emergence of future disputes.
This thesis suggests that all of the dispute settlement mechanisms can be used in a collaborative manner. The fact that the parties decide to litigate in international courts does not mean that the other mechanisms would be excluded. Before or during the course of the judicial proceedings, diplomatic means can always be resorted to. Successful environmental dispute resolution depends partly on the readiness of the parties to end a dispute and partly on the structure of the dispute settlement mechanism. Governments would have to decide what mechanisms could accommodate the unique characteristics of international environmental disputes that are at issue, taking into account all of the considerations discussed in this thesis.
|Date of Award||2016|
|Supervisor||Robin Churchill (Supervisor) & Elizabeth Kirk (Supervisor)|
An Appraisal of Third-Party Mechanisms in Settling International Environmental Disputes
Wongwuthikun, K. (Author). 2016
Student thesis: Doctoral Thesis › Doctor of Philosophy