Some RTIAs have provisions for consultation and the resolution of disputes among the parties with respect to the sorts of environmental provisions listed above, or any matters addressed in the environment chapter or side agreement. These would be used when one party feels that another party has not fulfilled its environmental commitments under the agreement.
There are two basic types, both of which may be featured simultaneously: state-to-state mechanisms and mechanisms whereby the public can complain about alleged failure to implement commitments. State-to-state mechanisms may be general (i.e., applying to the whole agreement, including environmental provisions) or isolated (i.e., applying just to the environment chapter or side agreement).
The state-to-state process will typically begin with consultations aimed at preventing any dispute. If these are ineffective, the matter is then taken up by the formal dispute settlement process. In the case of non-compliance with awards, the remedy is often a choice of financial compensation or removal of negotiated concessions.
To date there has been no use of a RTIA’s state-to-state mechanism for the resolution of environmental disputes. The experience of MEAs argues that strong enforcement-type mechanisms are often inappropriate ways to deal with non-implementation of, or non-compliance with, environmental commitments. Most breaches are a result of a lack of capacity rather than strategic intent to free ride or seek economic gain. This argues for, in addition to dispute settlement provisions, extensive consultative mechanisms, meaningful facilities for public submissions and other facilitative provisions.
Option 1:State-to-state dispute settlement mechanism (preceded by consultations) that covers the whole of the agreement, including environmental provisions
This is the simplest of options. If it is combined with binding commitments on environmental provisions, it has potential to be powerful if used. General dispute settlement mechanisms tend to have strong provisions on enforcement.
Examples
EU-CARIFORUM EPA defines the scope of the dispute avoidance and settlement provisions by noting: “This Part shall apply to any dispute concerning the interpretation and application of this Agreement.” (EU-CARIFORUM EPA, article 203)
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Examples
“If a Party considers that the other Party has failed to carry out its obligations under Article [X] [commitment not to fail to enforce environmental laws] the Party may request consultations under paragraph [X] [consultation mechanism specific to the environment chapter] or pursuant to Article [X] [agreement-wide consultation and dispute settlement mechanism].” (US – Australia FTA, Article 19.7(4))
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Option 2:State-to-state dispute settlement mechanism (preceded by consultations) that is specialized and applies only to the environmental chapter or side agreement
Enforcement and consultation isolated to the environment chapter or side agreement may have the benefit that it can be tailored to the specific provisions covered. Environmental disputes may need more consultation provisions than found in general trade dispute settlement provisions, breaches being usually more a matter of capacity than strategy. This, at least, is the experience of enforcement and dispute settlement in MEAs.
Examples
TPP features a mechanism for dispute resolution that begins with consultations “regarding any matter” under the environment chapter. It is a hybrid of the general and insulated approaches; if unresolved within the environment chapter’s extensive consultation provisions, the issue can go to dispute settlement under the agreement’s dispute settlement chapter. The consultations are described in TPP Articles 20.20 through 20.23, and can eventually be taken to dispute settlement under Chapter 28.
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Examples
“A Party may request consultations with the other Party regarding any matter arising under this Chapter [Environment] by delivering a written request to the contact point of the other Party. Consultations shall commence promptly after a Party delivers a request for consultations to the contact point of the other Party. The Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter.
If consultations under paragraph [X] [above] fail to resolve the matter, and a Party deems that the matter needs further discussion, that Party may request the establishment of an ad hoc Committee under Article [X] [on establishment of an ad hoc committee for consultations] to consider the matter. Where the establishment of such an ad hoc Committee is requested under this paragraph, that ad hoc Committee shall be established without undue delay and shall endeavour to agree on a resolution of the matter.” (Korea – Australia FTA, Article 18.7)
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Examples
“Either Party may request in writing consultations with the other Party regarding whether there has been a persistent pattern of failure by the other Party to effectively enforce its environmental law.
In such consultations, the Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter.
If the Parties fail to resolve the matter … within 60 days of delivery of a request for consultations, or such other period as the Parties may agree, either Party may request in writing a special session of the Council.
The requesting Party shall state in the request the matter complained of and shall deliver the request to the other Party.
Unless agreed otherwise, the Council shall convene within 20 days of the delivery of the request and shall endeavour to resolve the dispute promptly.
The Council may:
- call on such technical advisers or create such working groups or expert groups as it deems necessary,
- have recourse to good offices, conciliation, mediation or such other dispute resolution procedures, or
- make recommendations,
as may assist the Parties to reach a mutually satisfactory resolution of the dispute. Any such recommendations shall be made public if the Council so decides. (Canada – Chile Agreement on Environmental Cooperation, Part Five, Article 22-23)
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Option 3:Mechanism by which the public can complain of failure to implement the agreement’s environmental provisions
Such a mechanism allows the public to be the independent eyes and ears of environmental policy, usually to good effect. Typically the process’s findings are not binding, but rather intended to prompt action through exposure.
Examples
The NAAEC offers a mechanism for public submission of complaints about parties’ non-enforcement of existing laws. The complaints are heard by the secretariat (CEC) and, if found to have merit, are the subject of a public written factual record. The process for submissions on enforcement matters is described in NAAEC Article 14 (NAAEC, article 14), and the process of the factual record is described in Article 15 (NAAEC, Article 15).
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Examples
“Recognizing that opportunities for public participation can facilitate the sharing of best practices and the development of innovative approaches to issues of interest to the public, each Party shall:
…
provide for the receipt of written submissions from persons of either Party that concern matters related to the implementation of specific provisions of this Chapter. Each Party shall respond to these submissions in accordance with domestic procedures and make the submissions and its responses easily accessible to the public in a timely manner.”[1] (US – Korea FTA, Article 20.7(2))
[1] Also see side letters on this provision at page 466.
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Examples
“Each Party shall provide for the receipt and consideration of written submissions from persons of that Party regarding its implementation of this Chapter [footnote omitted]. Each Party shall respond in a timely manner to such submissions in writing and in accordance with domestic procedures, and make the submissions and its responses available to the public, for example by posting on an appropriate public website.
Each Party shall make its procedures for the receipt and consideration of written submissions readily accessible and publicly available, for example by posting on an appropriate public website. These procedures may provide that to be eligible for consideration the submission should: [fulfill various criteria]
…
If a submission asserts that a Party is failing to effectively enforce its environmental laws and following the written response to the submission by that Party, any other Party may request that the Committee on Environment (Committee) discuss that submission and written response with a view to further understanding the matter raised in the submission and, as appropriate, to consider whether the matter could benefit from cooperative activities.” (TPP, Article 20.9)
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Option 4:A party-to-party consultative mechanism
This approach is very institutionally light. In the case of controversial breaches, it might be too easy to ignore. It is, however, a good alternative to saying nothing about consultation and dispute resolution.
Examples
“If a Party considers that the other Party has offered [encouragement for the establishment, acquisition, expansion or retention in its territory of an investment of an investor], it may request consultations with the other Party and the Parties shall consult with a view to avoiding any such encouragement.” (India – Korea RTIA, Article 10.16(2))
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