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v9_1998b - 1 THE UNITED NATIONS DISPUTE SETTLEMENT SYSTEM...

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Unformatted text preview: 1 THE UNITED NATIONS DISPUTE SETTLEMENT SYSTEM AND INTERNATIONAL ENVIRONMENTAL DISPUTES David M. Konisky International security is increasingly considered to have a broader scope than was the case when the protection of national boundaries from external military aggressions was its focus. Today, many other facets of international security have emerged including those in the environmental domain. Inter- national environmental disputes, whether in terms of conflicts initiated from tensions over scarce resources or noncompliance with multilateral treaty obligations, pose new threats to inter- national security. Thus, it is essential to identify and under— stand the institutional capacity of the world community to effectively resolve such disputes. This analysis argues that the United Nations is the international institution best—suited to take on this new challenge to international security, particu- larly through its dispute settlement system. The paper exam— ines this system, identifying both its current capacity to resolve international environmental disputes and the modifications that are necessary to improve its effectiveness in addressing this emerging security concern. David M. Konisky is a Master of International Relations and Environmental Studies candidate at the Yale Center for International and Area Studies at Yale University. 2 David M Konisley INTRODUCTION One of the primary purposes of the United Nations according to its charter is: to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace (United Nations 1945, 1.1.1). While much of the recent attention of the’ United Nations in terms of security concerns has focused on issues of preventive diplomacy, peace— making, and peacekeeping, which are the primary subjects of former Secretary-General Boutros Boutros-Ghali’sAnAgendafbrPeace (Boutros— Ghali 1992, 1), the emerging importance of environmental concerns to international security has also been mentioned. In January 1992, the President of the Security Council stated that: The absence of war and military conflicts amongst States does not in itself ensure international peace and security. The non—military sources of insta— bility in the economic, social, humanitarian, and ecological fields have become threats to peace and security. The United Nations membership as a whole, working through the appropriate bodies, needs to give the highest priority to the solution of these matters (United Nations 1992a, 3: emphasis added). This statement indicates the United Nations’ recognition of the changing nature of security. The concept of security has historically been narrowly interpreted as security of territory from external aggression or of national interests in foreign policy. The State, thus, has been the prevailing entity for the guarantee of security, and State—centered theories have dominated discussions of international relations, especially in the post— World War II period (Dabelko and Dabelko 1995, 3). Global develop— ments, however, suggest that there is a need to broaden this definition, particularly to integrate new potential causes of intra- and inter-state conflict such as resource, environmental, and demographic issues (Mathews 1989, 23). For instance, former Senator Sam Nunn, once Chair of the U.S. Senate Armed Services Committee, stated in 1990 that: “There is a new and different threat to our national security emerging—the destruc— tion of our environments. I believe that one of our key national security The United Natiom and International Environmental Dispute: 3 objectives must be to reverse the accelerated pace of environmental destruction around the globe” (Myers 1993, 5). As this statement illus— trates, nations are increasingly showing recognition of the need to widen the traditional notion of security, but international institutions must also begin to recognize that the concept of security should be reconceptualized to take into account the changing conditions of the world order. The United Nations in many respects is leading the international community in determining the parameters of this expanded understand— ing of security, particularly through the promotion of the notion of human security. Although a rigorous definition of human security has yet to be developed, the United Nations Development Program (UNDP) in its 1994 Human Development Report noted its two main aspects: (1) safety from chronic threats such as hunger, disease, and repression, and (2) protection from sudden and hurtful disruptions in the patterns of daily life—whether in homes, in jobs, or in communities (UNDP 1994, 23). Although not stated explicitly, an important element of the concept of human security is protection from environmental degradation, or, as stated positively, the right to a safe environment. This was noted in Principle 1 of The Stockholm Declaration of 1 972 which affirmed: “Man has the fundamental right to freedom, equality and adequate conditions oflife, in an environment ofa quality that permits a life of dignity and well- being . . .” (United Nations 1972, 11.1). The United Nations emphasized the relationship between environ— mental concerns and international security at the United Nations Confer— ence on the Environment and Development (UNCED) which convened in June 1992 in Rio de Janeiro. Implicit in much of what was accom- plished at UNCED, particularly with regard to the legal instruments that were adopted, was the recognition that nations had to act collectively to address global environmental dilemmas and to prevent the occurrence and escalation of international environmental disputes (Sands 1993, 368). The United Nations seems to be willing to take up the increasingly dif- ficult challenge of environmental protection as it recognizes that this, too, like disarmament and economic development, is an important compo- nent of international peace and security. The United Nations has already demonstrated its leadership in the environmental domain in terms of establishing non—binding sets of resolutions and principles, or “soft” law (e.g. Stockholm Declaration of 1 972, the World Charter of Nature of 1 982, the Rio Declaration of 1 992), and in guiding negotiations of international treaties (e.g. Convention on the International Trade of Endangered Species of 1973, Montreal Proto— 4 David M Konirky col on Substances that Deplete the Ozone Layer of 1987, Framework Convention on Climate Change of 1 992). The United Nations recognizes that environmental problems have the potential to cause tension between states, perhaps to the extent of causing or escalating international conflicts. However, it must follow through on this recognition by adapting its organizational structure to address this expanded conception of security. One of the key elements to ensure that the environmental dimensions of security can be maintained and protecred is dispute settlement. The importance of strengthening or establishing institutions to facilitate the peaceful settlement of environmental disputes was recognized in Agenda 21 , the program designed at UNCED in 1 992. Although details were not provided, Agenda 21 noted the need for mechanisms and procedures to improve: the exchange of data and information, notification and consultation regard- ing situations that might lead to disputes with other states in the field of sustainable development and for the effective peaceful means of dispute settlement in accordance with the Charter of the United Nations including, where appropriate, recourses to the International Court of Justice, and their inclusion in treaties relating to sustainable development (United Nations 1992b, 39.10). With this in mind, it is the objective of this paper to briefly consider the dispute settlement system of the United Nations, to examine its prior application in the environmental domain, and to consider its potential for the future resolution of international environmental disputes. INTERNATIONAL ENVIRONMENTAL DISPUTES Prior to a discussion of the United Nations dispute settlement mechanism and its application to the environmental sphere, it is necessary to first define What is meant by an international environmental dispute. Interna- tional environmental disputes can be placed into two different categories: (1) violent conflicts caused by environmental problems, or, in other words, traditional military confrontations caused by environmental fac— tors, and (2) disputes among states with regard to noncompliance with international treaty obligations. Although this paper will predominantly focus on the latter, it is important to briefly discuss the first category. Much of the recent scholarship with regard to the relationship between security and the environment has focused on whether there are causal links between environmental change and violent conflict (Gleick 1 99 1; Myers 1993; Winnefeld 1994). At the forefront of this effort has been Homer— T/ae United Natiom and International Environmental Disgutex 5 Dixon and his colleagues working on an international research project on “Environmental Change and Acute Conflict” which identified several links between environmental scarcity and conflict (Dabelko and Dabelko 1995, 5) . Homer—Dixon concluded that first, the most likely environmen— tal problems to cause conflict were not atmospheric problems but rather disputes over forest, water, fishery, and cropland resources. Second, it was concluded that conflicts caused by environmental stress could be grouped into three potential types: simple-scarcity conflicts between states, popu— lation movement and group—identity conflicts, and economic deprivation, institutional disruption and civil strife conflicts. A complete discussion of each of these types of conflict is beyond the scope of this paper, but what is important for this analysis was Homer-Dixon’s general conclusion that environmental scarcity can cause violent conflict (Homer-Dixon 1994, 1 8-3 9) . Although doubts have been raised regarding the findings of Homer— Dixon and others who have concluded that there is a causal link between environmental problems and violent conflicts (Deudney 1 99 1 , 22—28), it has been generally recognized that at least, environmental factors includ— ing population growth and the unequal social distribution of resources, can act as an “accelerator” or catalyst for conflict, particularly intra—state confrontations (\Winnefeld 1 994, 1 1). Moreover, while not every environ- mental problem should be considered a threat to national or international security, it is apparent that certain regional and global environmental deficiencies can produce conditions that render conflict more likely (Gleick 1991, 1 8—1 9). Although the exact relationship between environ- mental problems and violent conflict remains somewhat unresolved, at a minimum, it can be argued that environmental stresses can aggravate other existing tensions. Thus, as stated in the report of the World Commission on Environment and Development, Our Common Future, environmental stresses can be an important part of the web of causality associated with any conflict World Commission on Environment and Development 1987, 291). The other category of international environmental disputes are those among states with regard to noncompliance with international treaty obligations. Such conflicts are more common and will be the primary focus of this paper. The relationship between security and noncompliance with international treaty obligations is somewhat obscure if the notion of security is limited to its traditional connotation. However, if security is considered in the broader context of which it was described in the introduction, then it is quite apparent that the protection of the environ- 6 David M Konis/ey ment is an important element of security. The existing international approach to environmental governance is based on a loosely connected set of environmental regulations and institutions predominantly created by multilaterally—negotiated agreements. The effectiveness of this approach depends primarily on the level of compliance with the laws and obligations such agreements embody. Multilateral environmental agreements in all cases will be more effective in achieving their stated objectives with higher levels of compliance since this is a primary element of their implementa- tion. An international environmental dispute can thus be thought of as a conflict caused by one nation confronting another nation with respect to an actual or perceived failure to adhere to a previously agreed to standard as determined by a multilateral environmental agreement. Such an agree- ment should be broadly interpreted to mean any treaty among two or more parties which in some way regulates behavior with respect to the environ- ment including issues of pollution, natural resources, biological diversity, etc. Since most environmental problems are at least transboundary in nature, if not global, failure to meet international treaty obligations can potentially pose a threat to the security of the world community, even if not in terms of direct military aggression. When security is viewed in this context, it is evident that state compliance with international environmental obligations has become a critical issue in international affairs. Sands noted three factors that underlie the increased concern with compliance: (1) the growing demands and needs of states for access to and use of natural resources coupled with a finite, and perhaps shrinking, resource base lay the groundwork for increasing international tension and conflict, (2) as international environ— mental obligations increasingly affect national economic interests, states that do not comply with their environmental obligations are perceived to gain unfair competitive economic advantage over other states, and (3) the nature and extent of international environmental obligations have been transformed in recent years as states assume greater environmental treaty commitments (Sands 1993, 368). Although the environmental challenges to the international community may be somewhat new in the post—World War 11 period, the international legal system has developed institutions, mechanisms, and techniques for preventing and resolving international environmental disputes, most notably the dispute settlement system of the United Nations. The United Nations and International Environmental Dispute: 7 WHY THE UNITED NATIONS? Before discussing the dispute settlement mechanisms which are part of the United Nations system, it is necessary to understand why an international organization is in general best-suited to resolve international environmen— tal disputes. The only other legitimate alternative institution that could potentially provide an adequate system of dispute settlement would be a regional organization. There are two primary reasons why a regional organization is not as suitable a choice as an international organization. For one, it has been firmly established that there are no “private” disputes among nations; international controversies are a concern of the world community, especially in situations when such disputes threaten security (Claude 1984, 224). This is true with respect to the environmental domain on more than a political level as most of the environmental stresses with the potential to cause an international environmental dispute are to some extent transboundary by nature. As an example, if a nation that is party to the Montreal Protocol were to blatantly refuse to comply with the treaty obligations to phase out their use of chlorofluorocarbons, the potential impacts would affect more than just that nation. In an ecologi— cally interdependent world, an action taken by one nation has impacts on all nations. As such, an international organization which is representative of the world, as opposed to a more limited focus of a regional organization, would be better able to resolve the potential dispute. A second reason that an international organization is better—equipped to address international environmental conflicts is the previous failure of regional organizations to address international security issues. Even in cases when the conflict is regional rather than global in nature and the threat to security is of more the traditional type such as external military aggression of one nation against another, recent experience has illustrated that regional organizations have not done well in their attempts to resolve disputes. With the exception of the Organization for American States, most regional organizations have not had notable success in the resolution of regional disputes without the assistance of the United Nations. There have even been instances when regional organizations have explicitly deferred to the capacity of the United Nations, as was the case when the Organization of African Unity declined assuming peacekeeping responsi— bilities in Rwanda citing the United Nations as better-equipped for the task (Sutterlin 1 995, 96~97). Based on this precedent, there is little reason to believe that regional organizations‘would have better success addressing concerns of a broader security context. 8 David M Kent's/g The next question that should be answered is Why the United Nations is the best international institution to address these conflicts. Trolldalen has enumerated a set of criteria for evaluating the potential for organiza— tional success in resolving international environmental disputes. Among the most important are legitimacy and credibility, a clear specific mandate, access to appropriate scientific information and expertise, and a specific mechanism for conflict resolution (Trolldalen 1 988, 29). The balance of this section illustrates that most of the criteria are possessed by the United Nations. The United Nations has recently been criticized due to recent perceived failures in peacekeeping operations in places such as Bosnia. Yet as an institution, the United Nations maintains both its legitimacy and credibil— ity in the sense that it is the most representative international organization in the world, with participation from nearly all of the nations of the international community, and it offers a neutral forum for discussing matters within the organization’s jurisdiction, namely the General Assem— bly. Although the Security Council itself may not be equitable in terms of voting power as it is based on post—World War II power relations (O’Neil 1 997, 59—82), the General Assembly has proven in certain cases that it has the ability to participate, or in the least, influence decisions on security matters, a role which may be bolstered as international security is increas- ingly interpreted to mean the security of people as well as states (Sutterlin 1 997, 6). The second important criterion is a clear, specific mandate. Undoubt- edly, as mentioned earlier in this paper, the United Nations has since its inception had as one of its most fundamental purposes the maintenance of international peace and security (United Nations 1 945, I. 1 . 1). Clearly, the United Nations’ commitment to this purpose is unquestionable. Moreover, since it has recently begun to conceive security in broader terms including the integration of environmental concerns into its conception of human security, the United Nations is presently the best suited international institution to facilitate the prevention and resolution of international environmental disputes. The next important criterion is that of access to appropriate scientific information and expertise. Though there is always opportunity for im— proving s...
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