In most legal systems, once a conflict has arisen the courts resolve it by applying relatively inflexible legal rules in order to determine which party's case is superior in law, thereby producing a winner and a loser. In some instances courts are the most appropriate forum for resolving conflicts, for example where the conflict is governed by clear legal rights and/or obligations that define a `guilty' and an `innocent' party or where there is a need for punishment, deterrence or redress. This is particularly relevant where there is an imbalance of power (e.g. economic or political) and the less powerful party could be forced into an unfair settlement.
However, in the case of many of the conflicts that arise in an ICAM context, such as competition for the use of a particular part of the coast, it is not possible, or even desirable, to stipulate rigid rules to determine who is `right'. Resolving conflicts of this nature requires a balancing of interests in the context of a wide range of flexible criteria, which themselves may not be wholly consistent.
The litigation process has been described as `decide, announce, defend' (Environment Council, 1995a). The parties to the dispute confront each other in a court, a judge or arbitrator considers the evidence and, based on predetermined legal rules, imposes a binding decision on them as to which party's case is superior in law, thus producing a so-called `win-lose' outcome. The parties relinquish control over the process by which the dispute is heard as well as the decision that is reached.
The role of the presiding judge(s) or arbitrator(s) varies in different legal systems. For example, in common law countries the judge acts more as a referee in a contest between the parties while in civil law systems judges have a more active role in determining the facts. However, the process generally involves adjudicating on the relative merits of the facts and arguments presented by the adversaries. The main disadvantage of this adversarial approach, particularly for the sort of disputes that arise in the context of ICAM, is that it produces piecemeal, incremental decision-making by a judge, based on narrow points of law, without taking wider related issues into account.
As litigation is ostensibly directed at narrow procedural and legal issues instead of the underlying policy questions, it often fails to resolve the real differences between the contending parties. For example, a challenge to a nuclear power plant may be based on the granting of a licence without holding a public hearing, but the policy questions at the heart of the controversy (e.g. should the nuclear power plant be built at all? What are the alternatives for supplying energy needs?) are rarely addressed by the courts. Furthermore, in many countries, when a court is required to review the decision of a government agency, it will typically only overrule it if the agency has failed to follow proper procedures, incorrectly interpreted the law, abused its discretion or acted arbitrarily or capriciously. Questions of policy may not even be considered.
There are a number of other significant disadvantages to applying adversarial techniques to the resolution of conflicts. For example, adversarial techniques frequently:
Many of these shortcomings stem from the focus on rights and duties rather than alternatives. As one expert puts it: `Litigation is geared to rectifying the injustices of the past and present, rather than to planning for some change to occur in the future. The very notion of planning is alien to adjudication...' (Horowitz, 1977). This illustrates the unsuitability of litigation for resolving many of the conflicts that arise in the context of ICAM and require the implementation of long-term sustainable solutions.
In addition, legal rules, not to mention social status and cost considerations, may prevent a party with a grievance from having access to the courts even to have its case heard. In many jurisdictions, legal rules on locus standi (standing) prevent parties from bringing an action to court if they do not have some right that has been directly infringed. This is particularly problematic in cases where individuals or organizations attempt to represent the interests of the damaged environment which, itself, has no legal rights. Coupled with this dilemma of access, is the fact that the law may not provide an adequate legal remedy in any event.
Many of the disputes that arise in the context of ICAM involve parties with multiple needs or ongoing relationships over the use of a common resource over which no party has a clearly superior legal claim. In these circumstances, adversarial confrontation is inappropriate and even counter-productive. Such conflicts are resolved most appropriately through a process that can take account of these needs or relationships and involves a process of interactive cooperation or consensus, in which the participants work together in the active pursuit of `win-win' solutions.
One of the main objectives of ADR is to create consensus by satisfying the interests of the people most concerned with the outcome. In contrast to the `decide, announce, defend' nature of litigation, alternative dispute resolution and consensus-building techniques (such as negotiation and mediation) are based on a philosophy of `discuss, agree, implement' (Environment Council, 1995b). They aim to help people with opposing views to work together to seek solutions that they can all support, allowing time for trust to build up between the participants so that they all feel part of a team seeking solutions together.
The main characteristics of ADR techniques are:
A number of significant advantages result from these characteristics:
ADR has been viewed negatively by some critics as a submissive reaction to conflict consisting only of compromise. However, it should be noted that generating `synergy' is an important part of ADR processes, and the use of synergy in pursuit of win-win solutions is not the same as compromise, which implies negative results for one if not both parties. To synergize means to apply the technique of creative cooperation. Synergy is achieved when two sides to a dispute work together, using their creative capacities to find new options and alternatives, to come up with a solution that is better than either side first proposed. `Compromise means that one plus one equals one and a half. Synergy means one plus one equals three, four or five... the real essence of synergy is that the whole is greater than the sum of its parts.' (Covey, 1992).
The following quote also highlights the advantages of ADR: `Behind opposed positions lie shared and compatible interests, as well as conflicting ones. We tend to assume that, because the other side's positions are opposed to ours, their interests must also be opposed. If we have an interest in defending ourselves, then they must want to attack us. If we have an interest in minimizing the rent, then their interest must be to maximize it. In many negotiations, however, a close examination of the underlying interests will reveal the existence of many more interests that are shared or compatible than the ones that are opposed.' (Fisher, Ury and Patten, 1991).
Although most conflicts of concern to ICAM will be between parties in the same country, environmental and natural resource disputes also occur at the international level and specific methods of settlement are being developed. While some coastal disputes have a potential international dimension (e.g. by virtue of their impact on shared marine resources), many of the principles applicable to international conflict resolution can be usefully applied at other levels.
The settlement of disputes arising at the international level, between states, has traditionally been approached on the basis of state responsibility, using the variety of forms of dispute settlement machinery set out in Article 33 (1) of the Charter of the United Nations, which states that `The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.'
Just as in disputes within states, there has, however, been a move away from the settlement of international environmental disputes through judicial institutions (such as the International Court of Justice) towards a more comprehensive regime aimed at the control and prevention of environmental harm and the conservation and sustainable development of the natural resources and ecosystems of the whole biosphere. This is in part the result of a growing recognition of the global character of many environmental problems and the inappropriateness of according `rights' to an injured state after the event when much wider issues are at stake, such as the protection of common interests, common property or future generations.8 In addition, many environmental problems involve harm that is subtle, cumulative and manifests itself only after a long period of time.
Experience indicates that solutions to such problems are often found most effectively not by judicial tribunals but through negotiations, allowing room for flexible or equitable solutions not necessarily dictated by international law, but accommodating as far as possible the interests of all parties. To meet these needs, there has been a move towards reliance on institutional machinery to resolve conflicts, in the form of intergovernmental commissions and meetings of treaty parties,9 rather than the traditional bilateral forms of dispute settlement.
As Birnie and Boyle (1992) point out: `No other model offers adequate solutions to the problem of controlling phenomena of global character, such as global warming or ozone depletion, where no single state's acts are responsible and where the interests of all are at stake. In other situations too, such as the conservation of fish stocks, the allocation of water resources or transboundary air pollution, bilateral dispute settlement may be inappropriate to the polycentric character of problems involving a range of actors and a multiplicity of complex interrelated issues. Some form of international management and cooperation will usually offer a more efficient and more equitable means of allocation and conservation of such resources.'
For these and other reasons (e.g. the lack of standing of states to bring international claims relating to the protection of `global commons' such as the high seas), international institutions have increasingly become a forum for dispute settlement through discussion and negotiation. Most of the more recent environmental treaties make specific provision for institutional supervision and regulation, with the aim of securing the parties' compliance with the treaty rather than adjudicating on breaches of it, and also refer to the need to ensure that parties use negotiation and other diplomatic channels to resolve their disputes before resorting to other more formal approaches.
Some of the more recent treaties (such as the 1992 Climate Change Convention) have established detailed mechanisms to settle disputes and encourage implementation non-contentiously. The 1982 UN Convention on the Law of the Sea (UNCLOS) went further than any previous environmental treaty by setting out, in Part XV, very comprehensive provisions on compulsory dispute settlement and requiring states to choose, on signing the Convention, which methods they will use in the event of a dispute arising over the application of the Convention.10
Chapter 39 of Agenda 21, entitled `International Legal Instruments and Mechanisms', recognizes as part of the review and development of international environmental law, the need to `...identify and prevent actual or potential conflicts, particularly between environmental and social/economic agreements or instruments, with a view to ensuring that such agreements or instruments are consistent...[and to] study and consider the broadening and strengthening of the capacity of mechanisms, inter alia, in the United Nations system, to facilitate, where appropriate and agreed to by the parties concerned, the identification, avoidance and settlement of international disputes in the field of sustainable development.'11
Furthermore, Article 10 of the Code of Conduct for Responsible Fisheries (Integration of Fisheries into Coastal Area Management)12 specifies that as part of the institutional framework for integration, states should `...facilitate the adoption of fisheries practices that avoid conflict among fisheries resources users and between them and other users of the coastal areaÉ[and] promote the establishment of procedures and mechanisms at the appropriate administrative level to settle conflicts which arise within the fisheries sector and between fisheries resource users and other users of the coastal area.'13
8 See also Part A, Section 1.6.1.
9 For example: The London Dumping Convention 1972; the Vienna Convention on the Protection of the Ozone Layer 1985; and the International Convention for the Regulation of Whaling 1946.
10 As noted by Birnie and Boyle (1992), this was considered essential for UNCLOS, a convention that establishes a complex balance of rights and duties over a wide range of issues. In other purely environmental treaties, which are concerned more with facilitating cooperative solutions to common problems than with the allocation and control of power, institutional supervision is still, generally, the more appropriate means of control and development.
11 Paragraph 39.3.
12 See Part D, Box D.9.
13 Paragraphs 10.1.4. and 10.1.5.