PERMANENT COURT OF ARBITRATION


Statement

by

Mr. Dane Ratliff,
Assistant Legal Counsel

at the
World Summit for Sustainable Development

Johannesburg, South Africa
29 August, 2002





Madame President,

This summit is, as you and many others have stated, about taking concrete action. It is my pleasure to report to you on the fruits of work of the Permanent Court of Arbitration in the field of dispute resolution related to sustainable development over the last few years. As has been expressed at various occasions at this Summit, the international community and civil society are growing increasingly dissatisfied with the procedural defects in available mechanisms for resolving environmental disputes. Much of this dissatisfaction centers on the lack of a unified forum to which all actors involved in an environmental or natural resource related dispute can have recourse. In the 1990's, UNCED and other global conferences responded to gaps in the international dispute settlement architecture partially by Multilateral Environmental Agreements in specific areas. Yet, with the notable exception of the International Tribunal for the Law of the Sea (ITLOS), there is still a paucity of institutional fora to which States and non-States can have recourse when seeking resolution of an environmental dispute.

The PCA has recognized these and other gaps in available dispute settlement procedures. Advised by a working group made up of leading environmental law experts, the PCA has made procedures available to address, among others, the problems of access to justice and the lack of environmental expertise in tribunals. These are the PCA's Environmental Arbitration Rules and Conciliation Rules, adopted by its 97 Member States on June 19, 2001 and April 16, 2002, respectively. They are our organization's contribution to the Rio+10 process. As I will explain, the Rules constitute clear evidence that we have the institutional capacity to meet the needs expressed in Principle 26 of the Rio Declaration. They provide a unique forum where States can "resolve all their environmental disputes peacefully.in accordance with the Charter of the United Nations". Guided by Principle 10 of the Rio Declaration, the Rules' drafting committee has provided in these Environmental Rules to all "concerned citizens" 1) the possibility for access to justice, 2) redress, and 3) remedy, beyond what is presently available in any other set of procedures or judicial forum. Furthermore, in the spirit of Principle 7 of the Rio Declaration, the PCA has made its Financial Assistance Fund available to aid developing countries. This Fund may be drawn on when developing countries seek to resolve a dispute relating to the environment and/or natural resources using one of the PCA's sets of the Environmental Rules, or engaging the services of the PCA in facilitating and administering resolution of such a dispute.

The strength of these dispute resolution rules is bolstered by the political will of its Member States to nominate internationally recognized jurists and scientists from their respective countries to serve on Expert Panels. There are presently over 100 persons on the lists of these two PCA Environmental Panels, the Panel of Arbitrators and the Panel of Scientific Experts.

Some innovative features of the PCA's Environmental Arbitration and Conciliation Rules are their procedures for the rapid constitution of a tribunal, allowing for a speedy response to a dispute; regulation of confidentiality; availability of provisional measures; and modern choice of law provisions - all tailored to environmental and/or natural resources dispute resolution. The rules have also been streamlined to keep costs at a minimum.

Throughout its history, the PCA has offered dispute settlement services to the international community: fact/finding and inquiry, mediation/ conciliation, and arbitration. Although originally conceived for the settlement of inter-State disputes, the PCA has, since 1935, extended its facilities also to cases involving State and non-State parties. Since then, it has positioned itself at the juncture between public and private international law. For the concerns of this summit, however, perhaps it is best to highlight the PCA's ability to bring together highly diverse legal systems and cultures through the flexibility of its mechanisms.

The flexibility of the Rules also allow for States and/or non-States to address the issues concerning them in a unified forum adding a form of stability to the legal regimes created 10 years ago at Rio, and any instrument(s) that might emerge in the wake of this Summit.

Dr. Toepfer referred to this summit as one of implementation, accountability, and partnership. Conciliation and arbitration under the PCA Rules can be used in the context of existing MEAs to promote their implementation. Corporate accountability could be fostered if business were to agree to insert references to these Rules in contracts, and if bilateral investment treaties related to sustainable development included references to these Rules. In addition, the PCA has undertaken a Type-I partnership by establishing Regional Facilities for Dispute Resolution around the world, with the aim to rapidly address disputes of all types including those relating to the environment and/or natural resources. In stride with the maxim of Local Agenda 21 to "think globally, act locally", the PCA has already set up in co-operation with the Government of Costa Rica, a Regional Facility for Latin America at the UN affiliated University for Peace (see: www.corte-arbitraje.org). Similar facilities will follow in other regions.

Madame President,

With respect to the international dispute resolution system, our organization has - in the context of the Rio+10 process, identified the lacunae in that system and produced concrete results. Delegations are therefore encouraged to support inclusion of a reference to these Rules in international legal instruments related to elements of sustainable development. Time is of the essence in responding to the problems addressed at this Summit. These Rules are prêt-à-porter. Insertion of the Rules into MEAs, bilateral investment treaties, and other international legal instruments will save the considerable time and expense needed to negotiate novel procedures. The Rules can be used in procedures to interpret and bring together the various systems of law mentioned in the Draft Plan of Implementation, and could be considered an innovation pursuant to the latter's Draft Article 146. This is an important point for resolution of environmental disputes given the fragmentation of the environmental legal regimes on the one hand, and the trans-boundary nature of most environmental and/or natural resource related disputes on the other. More importantly perhaps, offering access to justice to private parties promotes awareness of environmental problems and a means for resolving them.

Madame President,

These Rules do not fit within any one specific part or fall under any one particular theme of this Summit. That is because they can be used to facilitate implementation of so many of the issues under discussion here.

In conclusion, let me say that their use by the governments and organizations represented here this week would signify an important step forward. Like a bridge, their use would allow us to move from disputes to their resolution.

Thank you, Madame President.