The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach.

• Author: McGee, Jr., Henry W.

1. NEGOTIATION AND THE TREATY PROCESS IN THE RESOLUTION OF INTERNATIONAL ENVIRONMENTAL DISPUTES

   Cesare R. P. Romano, of the New York University Center for Global Cooperation, argues for and advocates arbitrative processes as the most tenable means of solving transboundary conflicts over the impacts of environmental pollution as well as access to natural resources. Against the backdrop of the thus far immortal principle of sovereignty, Romano eschews traditional explanations of the process by which nations settle these disputes in this important, comprehensive, and very readable book that surveys and reviews the classic conflicts of international environmental law.

   Romano introduces his authoritative and comprehensive work with an analysis of the existing treaty framework in which the conflicts have had to be resolved. He suggests that the present regime is not productive as the literature (and our hopes) might suggest, especially if the outcome is an analogue of national legal systems in which someone is found eventually at fault, and compensation is the natural right of the victorious litigant. Instead, he views arbitration and non-compliance procedures as more effective means of resolving transboundary international environmental disputes. Romano accepts the reality of sovereignty as a construct and entrenched obstacle that frustrates the search for a just resolution of environmental wrongs when redress is sought from nation states. He does, however, briefly consider current trends to fashion non-traditional organs of justice as well as increased roles for non-state actors in global environmental problem solving.

   In distinguishing international environmental disputes, Romano's book at its outset develops the parameters of such disputes. He argues that sifting such conflicts from the ocean of international conflict is difficult because many, indeed nearly all, conflicts between nations have their origins in environmental impacts and resource allocation and access. Nonetheless, his study considers dashes over impacts by nations and their nationals which are caused by declining natural resources availability. In fact, Romano draws no theoretical distinction in his consideration of transboundary contamination and struggles to maximize shares of natural resources. Romano demonstrates that resolution of either aspect of environmental conflict is resolved within the context of existing modes of international dispute resolution, which, in his view, remains the negotiated treaty model that strives for a "win-win" outcome.

   Indeed, Romano's book, an expansion of a remarkable dissertation, is most effective and useful in its detailing of the trends of dispute settlement procedures in multilateral treaties. His analysis exposes the complexity of these procedures while highlighting common aspects that resonate in more than 270 environmental treaties. Romano demonstrates that environmental conflicts are resolved through a process that mimics the negotiation of treaties--whatever the subject. The ultimate resolution resembles an incident-specific solution-cum-treaty.

   Romano maintains that negotiation of environmental treaties replicates the process by which nearly all disputes between nations are resolved (where there is no resort to the instruments of coercion or the use of violence, viz, warfare). Romano's study is thus important for its development of how treaties assist nations to take advantage of institutionalized procedural trends while granting them some range of choice as to the actual process invoked. For example, recent multilateral treaties provide for compulsory conciliation as a condition precedent to the use of more formal processes, such as resort to the International Court of Justice ("ICJ"). Also, recent agreements have recognized the importance of non-governmental organizations ("NGOs") and third party intervention.

   However, the emergence of non-compliance procedures has been the most remarkable development in multilateral accords. So while the nearly exponential increase of multi-nation accords with respect to the environment has increasingly formalized dispute resolution, such adjudicative processes are often by-passed for non-compliance procedures. The emergence of non-compliance procedures, since the "success" story of international ozone protection, fuels Romano's pragmatism in his view of international environmental/resource dispute resolution. In his view, states rarely subordinate sovereignty and its duster of "values" to international adjudication of arbitration, preferring the non-confrontational multilateral methodology of non-compliance procedures. He also points out that the monumental, most intractable, and finally most threatening environmental problems such as global warming and ozone depletion do not fit the traditional state-to-state tort model of bilateral, transboundary contamination. Rather, problems such as deforestation or even species extinction are at least regional and, at worst, global. Violators in such instances are responsible to the collective global community, not to sovereign rivals across an international boundary line.

   As the ozone protection regime illustrates, non-compliance regimes depend on a network of accommodating international regimes, buttressed by international law. Such regimes, such as that established in Montreal, provide an evolving institution which keeps pace with metamorphosis in the relevant science and provides for expansion of the original terms of the original treaty establishing a secretariat. Sovereignty is protected for each of the nations that participate in the regime to a far greater extent than the uncertainty intrinsic to third-party adjudication. Romano, in fact, concludes that non-compliance procedures have a prophylactic function. They succeed precisely because nations agree to their terms on an evolving and negotiated basis and do not commit them afortiori to legal obligations that may prove, in their view, to be ruinous.

   Nonetheless, Romano contends that an additional advantage of non-compliance has been some increased support for adjudication through what he terms a "mature" stance towards adjudication. The increasing pervasiveness of adjudication clauses in multilateral treaties is evidence that states are, in many instances, willing to accept third party determinations as a means of ultimately resolving disputes. This willingness to accept a resolution by a "neutral" decision-maker is, however, hedged by a lack of compulsory jurisdiction for international adjudication. Thus, states commonly make it clear that International Court of Justice jurisdiction is subject to the capacity of states to withdraw from its jurisdiction when disputes are submitted to it by opposing sovereigns.

   However, the "mature" stance towards legally-binding adjudication has not been evident when it comes to climate change. Despite the U.S.'s absence at the July 2001 climate talks in Bonn, Germany, Japan thwarted a legally-binding non-compliance procedure for the Kyoto Protocol. (3) This current lack of legally, binding consequences for non-compliance results in nation's carbon emission commitments from the already negotiated first phase of reductions spilling over into the yet-negotiated second phase--with 30% of the non-complying nation's original reduction commitment added to the total carbon reduction requirement. (4) Because the parties to the Kyoto Protocol have not yet negotiated the second phase of reductions, non-complying nations may rely on the negotiation process rather than brave any legal consequences. (5) The evolving, negotiated nature of non-compliance procedures, as described by Romano, trumps calls for compulsory international adjudication. Some agree with Romano that in order for Kyoto to be successful, its non-compliance procedures must remain flexible and evolving, like those of the Montreal Protocol. (6) The success of Kyoto's non-compliance procedure appears to rest on the protection of sovereignty of member states by permitting the system to evolve over time.

   Romano, not incidentally, discusses with great facility and comprehension the role of the ICJ in international environmental disputes. However, he does not discuss other, sometimes compulsory, adjudication contained in such multilateral agreements as the United Nations Convention on the Law of the Sea ("UNCLOS"), the World Trade Organization ("WTO"), and regional entities such as the European Union ("EU") and the North American Free Trade Agreement ("NAFTA"). In the end, Romano believes arbitration succeeds because on an ad hoc basis states can determine the choice of law, rules of procedure, and time frames of the process. One consequence of practical significance is the expensive and time-consuming nature of the process, given the threshold issues that must be resolved. Thus, real obstacles to resolution remain even if substantive issues are not yet reached for discussion. Arbitration's dynamic nature is also its most significant disadvantage. An additional advantage to the reader, however, is that Romano's expert comparison of the provisions of the various treaties provides a subtle and comprehensive overview of the arbitration process.

   As a prelude to the introduction of the many and highly readable ICJ case studies which make up much of the book, Romano discusses the ICJ in sufficient detail for one to understand the tribunal's intrinsic limits, and thus the modest outcomes of its deliberations. The Court decides cases only upon mutual conference of jurisdiction or if the given bi-lateral or multi-lateral agreement stipulates that the ICJ shall serve as a forum. Optional declarations of jurisdiction are sometimes a feature of treaties.

   Romano describes the recent development of the ICJ chamber on Environmental Matters. The chamber's creation may reduce the possibility of the ICJ losing some of its functions to other international adjudicative bodies, such as the...