An appraisal of the position of ADR in Climate Change Disputes.

 

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I.                   Introduction 

Climate Change discussions are so pertinent in today’s society. This owes to the fact that the manifestations of climate change such as droughts, storms, floods and extreme warm temperatures endangers the survival of humanity and planetary development. These consequences result in conflicts which have led to scholars and professors calling climate change a conflict multiplier and amplifier. These disputes mainly arise from the competition to acquire resources necessary for addressing the disasters caused by climate change. Consequently, these conflicts call for their resolution. Traditionally, litigation was the only mechanism used to resolve climate change disputes and conflicts. However, this mechanism proved to be deficient due to case backlogs and delays. This in return raised concerns on the best alternative mechanisms appropriate to resolve the conflicts arising from the manifestations of climate change. Authors argue that Alternative Dispute Resolution (ADR) Mechanisms are best suited to address climate change disputes given that they are time-saving, cost-effective and ability to address the root causes of conflicts. 

This article aims at shedding light on climate change disputes, the actors involved in such disputes and the place of ADR in climate change disputes.

2. Conceptualizing and Contextualizing Climate change disputes

Climate change disputes denotes ‘the disagreements arising out of or in relation to the effects of climate change and climate change policies.’  The conflicts arising from climate change are interrelated. For instance, water insecurity may result to food insecurity which in turn may result to violence and social unrest.

The disputes are often as a result of either the direct or indirect impacts of climate change. Direct cases involve claimants who allege to have suffered the negative effects of climate change or climate change policy filing cases against respondents who they claim to have contributed to their suffering through either regressive action (doing too little to solve the consequences of climate change or taking part in undermining the environment) or unfair affirmative actions (opting for ‘green’ methods to the detriment less environment-friendly alternatives). A case example is Lliuya v RWE AG, where a farmer sued an energy company for contributing into global warming , high sea levels and increased food security in his locality. In other cases, citizens sue their local governments for taking little action in redressing the effects of climate change.

On the other hand, indirect cases include those in which the claimant seeks no redress for the harm caused by climate change but are nonetheless related to climate change. This may revolve around the issue of underutilization of resources affected by climate change and failure by public and private bodies to meet their obligations on environmental disclosure and reporting especially on sectoral greenhouse inventions and the status of reduction of carbon dioxide emissions.

From the foregoing discussion it evident that the main actors involved in climate change disputes include: governments, private investors (particularly mining companies), local communities and private citizens among others.

 

3. The Place of ADR in Climate Change Disputes

The very nature of conflicts whereby they are time consuming, costly and destroy relationships calls for a cost-effective and sufficient conflict management mechanism. For the longest time, litigation has been the only mechanism used for resolving climate change dispute. However, this mechanism has bore little or no fruits due to case backlogs and delays. Other drawbacks of the mechanism are that the process is slow and expensive making it unsuitable for climate change disputes which require urgency. 

Based on the fact that climate change disputes involve great scientific and economic complexities, they require multi-prolonged innovative solutions. ADR mechanisms are best suited to resolve these disputes due to their ability to address the root cause of conflicts while at the same time preserving relationships.

ADR has been defined as a set of practices and strategies for resolving disagreements and disputes outside court. ADR mechanisms include negotiation, mediation, arbitration, conciliation and adjudication. With regards to climate change disputes, mediation proves to be the go-to. First and foremost, the mediator has to be an expert in the area of dispute. Further, he/she has to assess all aspects of the conflict such as the nature of the conflict and actors involved. The mediator is also required to organize several meetings with the parties starting with the information session which involves the mediator explaining the particulars of the whole process. This is then followed by a series of meeting until a settlement is reached.  One of the most successful mediations conducted in the extractive sector (a sector which contributes enormously to climate change) was the Olkaria IV Geothermal Project mediation which took place between the years 2015 and 2016.

In advancing the use of ADR in resolving global climate change and other environmental disputes, the international community through the establishment of the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention), will be able to enforce mediation settlements in the global space. This will enhance settlements through mediation as state parties can rely on the settlement agreement provided by the convention. It also ensures accountability as parties are required to provide a signed agreement, a document with the mediator’s signatory to serve as evidence that the mediation occurred and an attestation of the institution administering the mediation.

Other ADR mechanisms such as negotiation, arbitration and adjudication also contribute greatly to the resolution of climate change disputes. For instance, commercial arbitration provides an avenue for the resolution of climate change disputes through which businesses and investors can resolve disputes relating to renewable energy investments and carbon trading and pricing among others. Similarly, negotiation chips in in setting contractual terms whereby parties have to negotiate in order to reach an agreement. Instances where this is applicable is where mining companies have to reach an agreement of the contractual terms with the local communities. 

4. Conclusion

This article briefly discussed the interrelation of climate change dispute and ADR thus opening doors for more research in this area. Scholars and ADR practitioners are the most suited in scanting literature on climate change disputes and ADR while at the same time offering solutions to stem the existing gaps. Indeed, the future is ADR and as such, more efforts should be put to ensure that climate change disputes are resolved amicably through the aforesaid mechanisms.

BIBLIOGRAPHY

Case No. 2O 285/15 Essen Regional Court.

Ellen Messer, Climate Change & Violent Conflict: A Critical Literature Review’ Oxfam America Research Backgrounder Series (2010) 5. 

IPCC, Sixth Assessment Report: Climate Change Impacts, Adaptation, and Vulnerability,2022,37. 

ICC Arbitration and ADR Commission, Resolving Climate Change Related Disputes through Arbitration and ADR,8. (ICC Arbitration and ADR Commission). 

Iris Ng, ‘Beyond the Litigation Narrative: The Place and Roles of ADR in Climate Change Disputes’ [2022] Asian Dispute Review,21. 

Kariuki F., Sebayiga V., Evaluating the Role of ADR Mechanisms in Resolving Climate Change Disputes, Vol. 10 (3), Alternative Dispute Resolution, (2022).

Kariuki F, Sebayiga V, see also; The Kenyan Climate Change Act on the obligations posed on Public and Private sectors.

Kariuki Muigua, ‘ADR: The Road to Access to Justice in Kenya’ [2018] Alternative Dispute Resolution, 51. 

The Case of Olkaria IV Geothermal Kenya’ [2020] Journal of Conflict Management and Sustainable Development,6. 

Kariuki Muigua, ‘Adopting the Singapore Convention in Kenya: Insight and Analysis’ [2021] Alternative Dispute Resolution, 26. 

By  Victoria Mumo Titus ( a finalist at the University of Nairobi, School of Law, Parklands Campus)