Dispute settlement provisions are not unique to MEAs — they have long been an essential element of international agreements, because they provide the procedures by which disagreements among the Parties regarding the agreement can be resolved.
Dispute settlement provisions are included in a growing number of MEAs (most of the major global MEAs have dispute resolution mechanisms). Despite the number of available procedures, in practice States have shown reluctance to submit to the formal dispute settlement. In part, this is due to the fact that most of these provisions are not compulsory. Thus, in order for an aggrieved Party to avail itself of the mechanism, the other Party must consent to using the mechanism. Generally speaking, MEAs tend to focus on mechanisms that promote compliance (see the discussion relating to Guidelines 14
and 16), rather than on formal dispute settlement procedures. In more than a decade, the provisions for an arbitral tribunal under the CBD have never been invoked formally — and this is not unique for MEAs.
A 2001 UNEP study on “Dispute Avoidance and Dispute Settlement in International Law” highlighted methods for resolving potential disputes regarding MEAs. The study emphasised the need to address potential disputes at the earliest possible stage in order to avoid disputes, as well as utilising informal, non-confrontational approaches to address disagreements and disputes. Ideally, dispute settlement provisions of an MEA will simply be there as a “safety net,” to be employed only when measures to promote compliance and avoid disputes have not been effective. Dispute settlement provisions typically call for less confrontational measures, such as good offices and conciliation, to be attempted first. If these are unsuccessful, more formal measures such as arbitration or other judicial arrangements may be employed.
Increasingly, dispute settlement bodies accept complaints by NGOs and private individuals against States, as well as interventions (including amicus curiae or “friend of the court” briefs) by NGOs in disputes between States. These bodies include, for example, the World Trade Organization (amicus briefs), the Inter-American Court for the Protection and Promotion of Human Rights (complaints in environmental cases), and the International Court of Justice (amicus briefs).