Paul R. Williams

The Regime of International Law

To structure the articulation of general conclusions concerning the role of international law and the legal process within the international regime of transboundary environmental protection among CEE states, this chapter first explains the nature and operation of international regimes and the role of law as a constituent element of the regime of transboundary environmental protection, including its relation to other constituent elements such as social norms, international organizations, state actors and state policies, and the identifiable interests of sub-state actors and sub-state actor transnational networks. Particular attention is paid to situating this discussion within the current intellectual debate among social science scholars as to the way in which the power relationships among states are regulated and whether international law plays a role in shaping the manner in which a state exercises its political and economic power. This chapter then combines the observations derived from the secondary and primary case studies with the select work of regional specialists, political and social scientists, and legal scholars to identify and articulate the functions served by international law during the different phases of the dispute resolution process.

The Dispute-Formation Phase

To initiate the inquiry into the role of international law and the legal process in the Gabcikovo–Nagymaros Project dispute, this chapter begins with the dispute formation phase. The Gabcikovo–Nagymaros Project dispute serves as a particularly useful case study since the parties have attempted to resolve the dispute through negotiation, inquiry, mediation and adjudication.220 During each of these processes, the parties have invoked legal rationales ranging from well established treaty and transboundary resource law to more recent principles of international environmental law, and throughout the dispute, the behavior of the parties has been significantly influenced by a wide range of social and political issues.

Influencing the Utilization of International Law

To continue the articulation of general conclusions concerning the role of international law and the legal process within the international regime of transboundary environmental protection among CEE states, this chapter examines the groups of relevant sub-state actors and third parties capable of influencing transboundary environmental dispute resolution and the role of law within that process. This chapter then examines the categories of situational circumstances structuring the ability of states, sub-state actors and third parties to promote the resolution of disputes and the use of international law. Finally, in order to establish a basis from which to predict whether CEE states may be more inclined to rely upon international law, this chapter identifies factors that promote the functionality of international law within the regime of transboundary environmental protection, and thereby enhance the likelihood CEE states will rely upon international law to assist in the resolution of their transboundary environmental disputes.

The Implementation Phase

The decision of the ICJ signaled the end of the resolution phase of the Gabcikovo–Nagymaros Project dispute, with the implementation phase beginning with the efforts of Slovakia and Hungary to negotiate an operating regime consistent with the parameters contained within the order of the Court. As will be discussed in this chapter, when the parties eventually agree upon an operating regime, the implementation phase will further entail the development of mechanisms for the enforcement and verification of that regime, and for any necessary modification of the regime for environmental or other reasons. The efforts of the parties to negotiate a joint operating regime and develop mechanisms for enforcing, verifying and modifying that regime will be affected by the interests of sub-state actors and interested third parties, which may in some instances offer their good offices or serve as mediators or conciliators. The efforts of the parties to implement the agreement will also be influenced by the same situational circumstances that influenced the dispute formation, pre-resolution and resolution phases of the dispute.

The Resolution Phase

Moving to the dispute resolution phase, this chapter assesses the perceived functionality of international law as an element of the regime of transboundary environmental protection, noting in particular the ability of both the substantive principles of international law and the processes of inquiry, mediation and then adjudication before the International Court of Justice to assist the parties in accomplishing their objectives. This chapter also affords an opportunity for an extensive exploration of how specific legal principles and various aspects of the legal process operate to address the multifarious elements of a transboundary environmental dispute in such a manner so as to allocate the respective rights and responsibilities of each party as necessary to produce a formal decision capable of forming the basis for the settlement of the dispute.

The Southern Tier

Like the northern tier CEE states, the southern tier states suffer from a number of transboundary environmental disputes that threaten public health, degrade the environment and inhibit the normal conduct of international relations. Also, like the northern tier states, the southern tier disputes involve the pollution of transboundary watercourses, extensive air pollution, the destruction of biodiversity, the transport and storage of hazardous and radioactive waste, the siting and operation of nuclear facilities, and the land based and sea based pollution of regional seas. It should be noted the first dispute discussed, that of the environmental legacy of Soviet occupation, affects northern tier as well as southern tier states.

Predicting the Future

Given the relatively active role of international law and the legal process in the Gabcikovo–Nagymaros Project dispute, and the significant reliance on international law by the participants in the Baltic Sea dispute, as well as its increasing use in the Black Sea and Danube River Gauntlet disputes, this chapter seeks to gauge whether there might be an increasing use of international law by CEE states to assist in the resolution of their transboundary environmental disputes. To accomplish this task, this chapter examines the status of the six factors, identified in Chapter 8, that promote the functionality of international law within the regime of transboundary environmental protection.

The Pre-Resolution Phase

During the ensuing pre-resolution phase of the Gabcikovo-Nagymaros Project dispute, Hungary and Czechoslovakia further developed their positions with respect to the Project through considerable contact with various sub-state actors, which as a result of the 1989 political revolutions were provided greater opportunity to influence the dispute resolution behavior of their respective state entities.280 Czechoslovakia and Hungary also initiated contact with European states, the European Commission and the United States to assess their interest in facilitating a resolution of the dispute. Hungary, in addition, pursued contact with Austria to attempt to resolve Austria’s interest in the dispute in order to facilitate dispute resolution. Czechoslovakia and Hungary then invoked norms and principles of international law to frame their initial negotiating positions, to indicate they were willing to settle the dispute by legal means and to identify the dispute resolution mechanisms available to assist with resolving the dispute.

The Northern Tier

CEE states suffer from a number of bilateral and multilateral transboundary environmental disputes stretching from the Baltic Sea to the Black Sea and include disputes relating to water pollution, air pollution, the destruction of biodiversity, liability for hazardous waste and the siting and operation of nuclear facilities. These disputes exist at all four phases of the dispute resolution process, with some states just beginning to articulate the exact nature of their dispute and with other states striving to implement an agreed upon means for resolving the dispute. Similarly, some states have as yet failed to utilize a dispute resolution mechanism, while others are making active use of inquiry, mediation, conciliation, arbitration and in some instances, adjudication. The disputes involve not only states from CEE, but also states from the EU and former Soviet Union, and in at least one instance, Turkey. To structure the investigation of these case studies, which are arranged according to their geographic position on the North–South axis, each case study is divided into a discussion of the basic factual background necessary to understand the dispute, and a discussion of the current and potential role of international law and the legal process in promoting a resolution of the dispute.

Gauging the Operability of International Law

As discussed in Chapter 8, ecological, economic, political and national minority circumstances of CEE states influence the interest in and ability of CEE states, sub-state actors and interested third parties to resolve transboundary environmental disputes. This chapter explores the various circumstances affecting the behavior of states, and in particular draws conclusions relating to whether the changing ecological dynamics and the political and economic transition currently underway in CEE will enhance or detract from the ability of CEE states to use international law to assist in the resolution of their transboundary environmental disputes. The chapter also indicates, in light of these various circumstances, which elements of international law and the legal process might be most productively utilized to assist in the resolution of these disputes.