International Court of Environmental Arbitration and Conciliation (ICEAC)

Note: it seems that this Court is difunct.

The International Court of Environmental Arbitration and Conciliation (“the Court”) was established in Mexico D.F. on November 1994, by 28 lawyers from 22 different countries, as a form of Institutionalised Arbitration. The Court facilitates through conciliation and arbitration the settlement of environmental disputes submitted by States, natural or legal persons (“Parties”).

On the one hand, this facilitates the appointment of appropiate persons to solve the conflict, avoiding disputes about the suitability of arbitrators or conciliators, who otherwise would have to be chosen from an unlimited number of persons. On the other hand, the existence of a limited group of jurists who represent all political and legal cultures, in a unique and homogeneous body enables the Court to offer a consistent approach to the solution of environmental conflicts.

The Secretariat of the International Court of Environmental Arbitration and Conciliation keeps a list of members who will act as Arbitrators and Conciliators, irrespective of nationality, who are jurists or specialists of high reputation and who are well known in the legal or environmental fields. These represent the different legal systems of the world as well as the most important branches of environmental activities.

The functions of the Court are as follows:

A) Conciliation

Any public or private entity which wishes to initiate conciliation procedure must submit an application to the Court, which will send a copy of this application to the other Party. Once intervention by the Court has been accepted by both Parties, a Commission comprising an odd number of conciliators will be appointed by the Secretary General in consultation with the Parties and the Members of the Court. The Commission will have to clarify the points of controversy between the Parties and strive to achive an agreement between them, under conditions acceptable to both sides.

If, at any time during the proceure, the Commission decides that there is no possibility of achieving an agreement between the Parties, it will declare the procedure closed and draw up a document, making note of the fact that the controversy has been submitted to Conciliation without an agreement having been reached.

B) Arbitration.

As in the previous case, any public or private entity may submit a written request for Arbitration to the Court. The Court will send a copy of this request to the other Party. Once both Parties have consented to Arbitration by the Court, a Tribunal will be constituted by five Arbitrators appointed in accordance with the Statutes.

The Court will resolve the dispute in accordance with the applicable Law, and the norms agreed by the Parties.

Moreover, if necessary, the Court may recommend the adoption of provisional measures which it considers necessary for safeguarding the environment or rights of the Parties. Likewise, the Parties can apply to the governmental or jurisdictional institutions of the State where the source of the conflict is located in order to request the adoption of such measures.

The decision must be given in writing, containing a declaration of all the claims submitted by the Parties to the Court and will be based on the applicable Law.

C) Consultative Opinions

The Court may give Consultative Opinions in relation to any legal matter on request of any kind of entity whether public or private, national or international.

Consultative opinions are available to a citizen of any country on application to the Secretariat, unless the Party applying for the opinion requests otherwise.

Consultative Opinions may be requested of the following types:

Preventive – in order to ascertain whether a proposed project is compatible with Environmental Law.
Confirmatory – in order to confirm that an action has been carried out in compliance with Environmental Law.
Denunciatory – in order to enquire whether an action by another person complies with Environmental Law and if not to make that information available to the international com munity.

In the resolution of controversies or in the issuing of Consultative Opinion, the Court applies:

a) International treaties and applicable private contracts.
b) General rules and principles of International Environmental Law.
c) Relevant National Law, in accordance with generally accepted rules of Private Internatio nal Law
d) Any other principles, rules or standards which the Court deems relevant, including equity.

It must be noted that, should the other Party not accept the Conciliation or Arbitration procedure, it is always possible to request a Consultative Opinion if the matter has international relevance, so that a refusal of the Arbitration or the Conciliation procedure does not necessarily avoid the intervention of the Court.

International Court of Environmental Arbitration and Conciliation, or Corte Internacional de Arbitraje y Conciliación Ambiental (CIACA), was funded in November 1994, Mexico City (Mexico). Registered in accordance with Mexican law. Facilitates through conciliation and arbitration the settlement of environmental disputes submitted by States, natural or legal persons. Includes Statutes of the Court, newsletters and Consultative Opinions Court cases. In such a simple manner the institution began its
operation and has kept on operating till present day.

Modes of Operation

Access to the Court is not limited. Parties may be natural or legal
persons, whether public or private, national or international. In
particular, the procedure is open to individuals or NGOs who
challenge the conformity of administrative decisions taken by
states and their subdivisions with applicable law.

In all types of procedures for the resolution of controversies the
Court applies:
· International treaties of environmental protection;
· the general principles of international environmental la w;
· the relevant national law, in accordance with generally
accepted rules of private international law and other pertinent
rules for conflicts of law;
· any other principles, rules or standards which the Court deems
relevant, including equity.

The activities of the Court comprise the following three
procedures:
a. Arbitration
b. Conciliation
c. Consultative opinions

The Court may issue consultative opinions in relation to any legal
environmental matter of international concern at the request of any
kind of entity whether public or private, national or international.
Consultative opinions are full text available on application to the
Secretariat, unless the party applying for the opinion requests
otherwise.

Consultative opinions may have the following nature:
a) Preventive, in order to ascertain whether a proposed project is
compatible with environmental law.
b) Confirmatory, to confirm that an action has been carried out in
compliance with environmental law; and
c) Denunciatory, enquiring whether an action by another person
complies with environmental law and, if not, making that
information available to the international community.
This study shows that there is a need for international arbitration
and conciliation around environmental matters. However this
relative success of the Court does not mean that every single
petition could be processed until the final procedural phase. Often,
the petitioners abandoned the case. Apart from this, there are two
common features to observe:
a) Public institutions named defendants in every case rejected the
petitions for conciliation, probably because in their countries they
enjoy the privilege of compulsory enforcement of administrative
acts, so they see no reason to take the risk for their actions being
paralysed.
b) The petitioners are in most of the cases affected citizens or
conservationists without economic resources to afford an ordinary
procedure of the Court.

Conclusion

The experience of the International Court of Environmental
Arbitration and Conciliation shows that from the point of view of
concerned individuals and NGOs, there is a need for international
alternative settlement of environmental conflicts. However, states
and their subdivisions are reluctant to submit themselves to such
adjudication, especially in the relationship with individuals and
NGOs. Although one may safely state that the international law of
the environment is on the road to strengthening the role of nonstate
actors, there is still a long way to go before access of these
actors to international adjudication will be fully recognised. The
International Court of Environmental Arbitration and Conciliation,
especially in view of its flexible procedure for issuing consultative
opinions, its independence and broad scope of legitimacy, offers
an international foru m for making available the need for some sort
of international independent resolution of environmental disputes.
If the way we live together is to be ruled by Law, and if this is to
be a just rule, we have here the perfect opportunity to show future
generations that reason and good sense can also sometimes
overcome barbaric and unsustainable development practices.

Aims

Facilitate, by conciliation and arbitration, the settlement of environmental disputes between States, natural or legal persons and submitted to it by agreement of the parties to the dispute (Parties); give consultative opinions on questions of environmental law or on legal aspects of the use or protection of elements of the environment in any case which is of international concern, at the request of any natural of legal person whether national or international, public or private, including States and local authorities (Petitioner).

Source: UIA

Activities

The functions of the Court are Conciliation, Arbitration and Consultative Opinions, which may be of the following types: Preventive; Confirmatory; Denunciatory.

Environment Rights

At the International Congress on Environmental Law held in
Cuernavaca (Mexico) in May 1993, Dr. Demetrio Loperena, worried
about the absence of adequate control on compliance by states with
international environmental law, proposed the creation of an
International Court of Environmental Arbitration and Conciliation.
The idea was highly welcomed by the participants of the congress and
led to a series of discussions among academic experts on the subject,
resulting finally in a call on those ones who shared the idea to a
meeting in Mexico City on the 21, 22 and 23 of November 1994. They
agreed to constitute the International Court of Environmental
Arbitration and Conciliation as a civil association under Mexican law.
During the constitutive session the Secretary General and the
Secretary General Assistant were appointed, the provisional statutes
approved and a list of experts on environmental law to become
members of the Court decided. This decision was made in the form of
a closed list, but open to other legal cultures. Initially it was formed by
professors of 26 different nationalities.

The statutes were definitely set forth during three plenary sessions
held by the Court. The first of them was held in San Sebastian (Spain)
on 19 and 20 July 1995, the second in Mexico and Cancun between 27
November and 4 December 1995, and the last in Nea Epidauros
(Greece) on 12 and 13 September 1996.

Meanwhile, thanks to the funding support of the Basque Government
and the University of the Basque Country, the administrative office of
the Court has been set up in San Sebastian, Spain, for processing the

Members

Boraoui Soukeina. Tunisie.
Michael Bothe. Germany.
Luis Caeiro Pitta. Portugal.
Jorge Caillaux. Peru.
Vassili Costopoulos. Greece.
Ricardo Cronembold. Bolivia.
Deirdre Exell Pirro. Australia.
Maryse Grandbois. Canada.
Freddy Luis Heinrich Balcázar. Bolivia.
Alexander Kiss. France.
Paulo Affonso Leme Machado. Brazil.
Demetrio Loperena Rota. Spain.
Zdenek Madar. Hungary.
Ramón Martín Mateo. Spain.
Akio Morishima. Japan.
Charles Okidi Odidi. Kenya.
Ramón Ojeda Mestre. Mexico.
Miguel Patiño Posse. Colombia.
Eduardo Pigretti. Argentina.
Zygmunt Plater. USA.
Amedeo Postiglione. Italy.
Michel Prieur. France.
Rita Raum-Degreve. Luxemburg.
Eckard Rehbinder. Germany.
Mary Sancy. Belgium.
Dinah Shelton. USA.
Rafael Valenzuela. Chile.
Andrew Waite. United Kingdom.
Luis Ricardo Zeledón. Costa Rica.

Statutes

FIRST CHAPTER: INSTITUTION OF THE COURT

Article 1

A Court called “International Court of Environmental Arbitration and Conciliation” is hereby constituted.

The Court shall be composed of the signatories of these Statutes and any other Member appointed in accordance with the By-laws.

Article 2

The functions of the Court are the following:

To facilitate, by Conciliation and Arbitration the settlement of environmental disputes between States, natural or legal persons and submitted to it by agreement of the parties to the dispute (“Parties”).

To give Consultative Opinions on questions of Environmental Law or on legal aspects of the use or protection of elements of the environment in any case which is of international concern, at the request of any natural or legal person, whether national or international, public or private, including States and Local Authorities (“Petitioner”).

Where a doubt arises concerning the competence of the Court in a particular case submitted to it, the Court shall decide by a two-thirds majority vote whether to assume jurisdiction.

Members of the Court exercise their functions in Plenary Sessions and, depending on the requests which are submitted to the Court, either in the form of a Commission of Conciliation (“Commission”), a Tribunal of Arbitration (“Tribunal”) or a Chamber for Consultative Opinions (“Chamber”).

Article 3

The principal organ of the Court is the Plenary composed of all Members of the Court. It shall take decisions concerning the general policy of the Court, approve the budget, adopt the Regulations of the Court and undertake any other function entrusted to the Members of the Court by these Statutes.

A Secretary General of the Court is appointed by the Plenary of the Court for a renewable term of six years. He carries out the functions of Registrar of the Court and is head of its administration. He is assisted by an Assistant Secretary General, appointed by the Plenary of the Court, and a Secretariat. The Secretary General and the Assistant Secretary General shall undertake such other functions as are entrusted to him by these Statutes and the By-laws.

Article 4

The International Court of Environmental Arbitration and Conciliation is an association*.

Its permanent seats are in México D.F. and in San Sebastián (Spain). It can decide to establish offices in other places.

* At the present time it is registred under Mexican law.
SECOND CHAPTER: CONCILIATION

Article 5

Parties to a dispute defined in Art.2 (a) can initiate a procedure of Conciliation by an agreement addressed to the Secretary General. The agreement shall identify the Parties and contain the essential elements of the dispute. A Party can also request the Court to inform other Party of its intention to initiate Conciliation and ask for the assistance of the Court in order to reach an agreement on the submission of the case to Conciliation.

Not later than thirty days after the registration of the request for Conciliation, the Secretary General, after having consulted the Parties and taking into account their views and after consulting the Members of the Court, shall designate the Members of the Commission.

The Secretary General shall organise as soon as possible meetings of the Members of the Commission with the Parties. The meetings shall determine the procedure which the Commission shall follow.

Article 6

The Commission shall establish the facts and the circumstances of the dispute. Parties shall make available to the Commission all the relevant information in their possession and shall facilitate by all reasonable means the work of the Commission.

Once the Commission considers that the facts and circumstances of the dispute have been established, it shall submit to the Parties a proposal for the settlement of the dispute. Such proposal shall be discussed with the Parties either separately or in meetings with both Parties present, in accordance with the procedure agreed under article 5.

If the Parties reach an agreement resolving the dispute, the text of the agreement shall be signed by each Party and by all the Members of the Commission and shall be registered by the Secretary General.

The procedure of the Commission shall be confidential, unless agreed otherwise by the Parties. However, a short report on the case and on the solution adopted can be made public by the Secretary General, unless one of the Parties opposes it.

THIRD CHAPTER: ARBITRATION

Article 7

Parties can by agreement initiate Arbitration by submitting the dispute to the Court. A Party can also request the Court to inform the other Party of its intention to initiate Arbitration and ask for the assistance of the Court in order to reach an agreement on the submission of the case to Arbitration. Such requests shall be confidential, unless the Court decides otherwise.

Article 8

The agreement submitting the case to Arbitration shall include:

The presentation of the case, of its essential facts and the submissions of the Parties concerning the legal solutions which they request.

A formal commitment to co-operate in the settlement of the dispute by Arbitration and to execute the award given by the Tribunal or to facilitate its execution. If a State is a Party, such commitment shall include the waiver of sovereign immunity for the execution of the award, wherever such execution may take place.

Article 9

The Secretary General, after having consulted the Parties and taking into account their views and after consulting the Members of the Court, shall designate the Members of the Tribunal of Arbitration.

Each Party shall nominate two arbitrators among the Members of the Court, for approval by the Secretary General. Following such approval, the four arbitrators shall by agreement nominate a fifth Member of the Court to be President. Such nomination shall be subject to approval by the Secretary General. If there is no such agreement, the Secretary General shall designate the President of the Tribunal after consultation with the Parties. In exercising his functions under this paragraph, the Secretary General shall consult with all Members of the Court.

The Tribunal determines its rules of procedure, taking into account the Regulations of the Court. If no agreement is reached, the Regulations of the Court shall apply.

The Tribunal can order such provisional measures as it deems necessary, either on its own initiative, or at the request of one of the Parties.

Article 10

When deciding a case which is submitted to it and unless the Parties to the dispute otherwise agree, the Tribunal shall apply:

International treaties and Private Law contracts binding upon the Parties.

General rules and principles of International Environmental Law.

Relevant National Law in accordance with generally accepted rules of Private International Law.

Any other principles, rules or standards on which the Parties agree, including equity.

Article 11

The Tribunal takes its decisions by a majority vote. The award shall contain the reasons for the decision and shall be published, unless the Parties agree otherwise. Any Member of the Tribunal can append a separate opinion to the award.

FOURTH CHAPTER: CONSULTATIVE OPINIONS

Article 12

Subject to article 2.1 (b), the Court can adopt Consultative Opinions on legal issues relating to the environment at the written request of a Petitioner. The request shall include a detailed presentation of the case and of the legal problems involved, as well as all information necessary for a decision on its admissibility. It shall be kept confidential. Any publicity given to such a request by the Petitioner shall be a cause of non-admissibility.

Article 13

The Secretary General, after consultation with the Members of the Court, shall designate three Members of the Court who shall decide by a majority vote on the admissibility of the request. If the request is admitted, two further Members of the Court shall be designated by the Secretary General after consultation with the Petitioner, and the Members of the Court. Such five designated Members of the Court shall constitute the Chamber.

The Chamber can collect all information necessary for the performance of its functions. The Petitioner shall give full cooperation in this task.

Consultative Opinions will be adopted by the majority of the Members of the Chamber. They are not mandatory. They will be made public unless the Petitioner requests otherwise in writing.

Article 14

When drafting Consultative Opinions, the Chamber shall apply:

International treaties and applicable Private Law contracts.

General rules and principles of International Environmental Law.

Relevant National Law, in accordance with generally accepted rules of Private International Law.

Any other principles, rules or standards which the Chamber deems relevant, including equity.

FINAL CLAUSES

Article 15

Subject to provisions of any agreement under articles 5 or 8, each Party shall bear its own expenses. The expenses of the Court shall be met by the Parties to the dispute according to the decision of the Court. The expenses of the Court for an a consultative opinion shall be met by the Petitioner.

Article 16

Decisions of the Court can be taken by correspondance, unless stated otherwise in these Statutes.

Article 17

The Court shall have power to do all such things as may facilitate its functions under the Statutes.

Article 18

The Statutes can be modified by the Members of the Court by a four-fifths majority vote. The dissolution of the Court can be decided by the same procedure.

Article 19

The official languages of the Court are the languages of the United Nations Organisation. Working languages are English and Spanish. The Parties to a dispute can agree upon the use of any other language if they agree to bear any increased cost of translation and interpretation.