Resolving North America's environmental disputes.

• Author: Mauseth, Mike

1. INTRODUCTION

   Seventeen years ago John E. Carroll and Newell B. Mack analyzed the then-current status of environmental protection mechanisms used between Canada and the United States.(1) They criticized the ad hoc nature of North America's history of environmental dispute resolution, which they dubbed "ad hockery,"(2) and believed the present ambiguity hurt business, diplomatic relations, and the citizenry's environment.(3) Since that publication, increasing efforts to incorporate environmental concerns into Conventions have resulted in several multilateral agreements focusing on environmental protection and dispute resolution. Part Two of this paper will introduce a few of these recent agreements and the mechanisms they have established to monitor environmental damage and to enforce the goals of the agreements. The agreements discussed include: Montreal Protocol on Substances that Deplete the Ozone Layer;(4) Vienna Convention for the Protection of the Ozone Layer;(5) Protocol on Substances that Deplete the Ozone Layer;(6) Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal;(7) Canada-United States: Agreement on Air Quality;(8) Rio Declaration on Environment and Development;(9) Framework Convention on Climate Change;(10) Convention on Biological Diversity;(11) and the North American Agreement on Environmental Cooperation.(12)

   Part Three will discuss the general concern related to economic development (with the need to maintain "sustainable development"(13)), the possible environmental impact of NAFTA, and the Supplemental Agreement's strengths and weaknesses.

2. SELECTED ENVIRONMENTAL AGREEMENTS AND THEIR RESPECTIVE DISPUTE SETTLEMENT/ENFORCEMENT FRAMEWORKS

   1. Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol)

      The Montreal Protocol asks the Parties to "take appropriate measures to protect human health and environment against the adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer."(14)

      The protocol requires Parties to reduce their CFC production based on levels emitted during 1986.(15) The Parties, after entering the agreement into force, will report yearly levels of CFC production to the Convention's secretariat who will supervise Parties' compliance with the Convention's requirements.(16) The protocol holds that Parties shall ban trade with non-members who do not comply with the protocol if such trade involves any of the controlled substances listed within the Convention.(17)

      The goals of the Montreal Protocol are detailed, giving desirable levels of CFC production for Parties of the agreement.(18) Such detail disappears when looking for enforcement power or guidance for dispute resolution under the agreement.(19) The agreement refuses to implement specific enforcement powers of the Secretariat and mentions no procedure for settling disputes.(20)

   2. Vienna Convention for the Protection of the Ozone Layer

      The Convention takes a broad view of adverse effects to the environment, defining it as "changes in the physical environment or biota, including changes in climate, which have significant deleterious effects on human health or on the composition, resilience and productivity of natural and managed ecosystems, or on materials useful to mankind.(21) In preventing such damage, the Convention requires Parties to "take appropriate measures ... to protect human health and the environment against adverse effects resulting from human activities which modify or are likely to modify the ozone layer."(22)

      The "appropriate measures" include requiring Parties to engage in systematic research and observation, to adopt harmonized internal legislation that limits damaging human activities, and to cooperate with the individual Party-states and international bodies in creating standards and enforcement of this Convention.(23) The Convention, though requiring coordination of activity, is ever mindful of not usurping domestic sovereignty(24) and the need for a scientific basis for any action.(25) The need for reasonable action motivates the Convention in encouraging the exchange of information.(26) The exchange of information also encourages the transfer of technologies to developing countries through: (a) the facilitation of developing countries acquiring alternative technologies; (b) the provision of instruction on the alternative technologies; (c) the provision of required equipment and research; and (d) the provision of appropriate training of required personnel.(27)

      The Convention provides an established framework for dispute settlement, requiring Parties to negotiate if a conflict arises about the interpretation or application of the Convention.(28) If the Parties cannot agree on a solution, a third Party may be requested to preside over the dispute.(29) If the Parties are still unable to end the conflict, three things may happen: (a) the dispute may go to arbitration; (b) the dispute may be heard and decided by the International Court of Justice; or (c) a conciliation commission may be created (with equal members appointed by the separate Parties) which will deliver the final award.(30) No specific enforcement powers are granted through the Convention, but the final judgments and recommendations on the disputes must be "considered in good faith" by the Parties.(31)

   3. The Global Convention on the Control of Transboundary Movements of Hazardous Waste (Basel Convention)

      The Convention serves to protect neighboring environments of waste producing Parties by prohibiting the exportation of hazardous wastes to non-consenting neighboring states.(32) The Convention goes farther by: requiring Parties to minimize the creation of hazardous wastes within their own domestic boundaries; ensuring proper disposal facilities are located in the domestic territory; having proper management and procedure to deal with the hazardous wastes; and reporting the transboundary movement of hazardous wastes.(33)

      The Convention emphasizes the need for Party cooperation to better handle environmental waste.(34) To do this, the Convention requires Parties to: (a) harmonize technical standards and practices "for the adequate management of hazardous waste and other waste"; (b) cooperate in monitoring the effects of hazardous waste management on human health and the environment; (c) develop and implement low-waste technologies; and (d) transfer the technologies to developing countries.(35)

      Dispute resolution under the Basel Convention encourages Parties, in case of a dispute over the interpretation, application, or compliance with the provisions in the Convention, to settle the dispute through any peaceful means of the Parties' choice.(36) If this consensual resolution fails to work, the Parties may allow the dispute go before the International Court of Justice or to arbitration.(37) If the Parties cannot agree to either of these destinations, they are still required to seek resolution of the dispute.(38)

      The Convention sets out a detailed list of procedures for arbitration which will be in effect if both Parties agree to a forum for dispute settlement.(39) A tribunal, consisting of three members, will be established to settle the dispute.(40) Each Party appoints one arbitrator and the two appointees agree on a third arbitrator who is not a national of either Party.(41) The decisions of the tribunal are decided by a majority of votes and the arbitrators may engage in any reasonable fact-finding that they deem necessary to make a decision.(42) The tribunal is not given explicit sanctioning or enforcement power, but the Convention requires the Parties to consider the final decision as binding and final.(43)

   4. Canada-United States: Agreement on Air Quality

      The agreement begins by proclaiming that air pollution can cause "significant harm to natural resources of vital environmental, cultural and economic importance, and to human health.(44) To combat such harm, the agreement lists both general and specific air quality objectives for both nations to meet. The general objective controls transboundary air pollution between Canada and the United States,(45) and includes the following steps: (a) establishing specific emissions limitations or reductions of air pollutants and the adoption of programs to implement such standards;(46) (b) beginning environmental impact assessments, prior notification, and mitigation efforts;(47) (c) maintaining coordinated scientific research and technical activities, including the exchange of information;(48) and (d) creating dispute resolution and assessment institutions.(49) The agreement also formed the Air Quality Committee(50) that will be kept apprised of pertinent issues.(51)

      If a dispute arises over the implementation or interpretation of the agreement, the Parties must negotiate at the request of either Party.(52) If the Parties cannot resolve their dispute by negotiating they may elect the International Joint Commission(53) (IJC) to settle the conflict. If Parties cannot agree to the IJC presiding over the dispute, they must submit to another agreed on form of dispute resolution.(54)

   5. Rio Declaration on Environment and Development

      Though not a Convention with binding requirements on signatories, the Rio Declaration(55) demonstrates the significance of the environment to the global community and highlights the concern of North America(56) in protecting the environment. The declaration begins by reiterating the point that nations have the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies coupled with the responsibility not to damage other nations' environments "or areas beyond the limits of national jurisdiction."(57) This exercise in sovereignty balances with several international principles that intertwine environmental protection with economic development.(58) The burden placed upon developing countries, though not...