One of the most eye-opening experiences of my life was the many months I spent working and living among the Mazahua people in Mexico. This tight-knit community of indigenous people had maintained a coherent community until the Mexican government created the oppressive water regime known as the Cutzamala System. This system ships water from the Mazahua lands to Mexico City to quench the thirst of the people in the capital. With the powerful Mexican government commandeering the water from the Mazahua land, the Mazahua people are relegated to destitution.
Working with the Mazahua, I became familiar with this ongoing conflict between the Mexican government and the Mazahua people. I later learned of the Latin American Water Tribunal (LAWT) and how it helps communities like the Mazahua people to have a voice in disputes involving limited resources and powerful players. The LAWT offered the Mazahua community an innovative alternative where they would otherwise have none. As a meaningful alternative dispute resolution method, the LAWT employs a creative and unique approach to resolve environmental and water disputes. The tribunal combines various dispute resolution approaches in such a way that the disadvantages and drawbacks of traditional arbitration are eliminated.
How the LAWT Works
The LAWT provides a forum for communities to expose environmental problems in a semi-legal context. The tribunal is “standing on the shoulder of giants” in that it has been educated and inspired by previous tribunals in Europe and South America.1 In the past three decades, there have been various environmental tribunals.2 Laying the groundwork for the Latin American Water Tribunal, these tribunals pursued justice by promoting solutions to severe contamination that threatened water systems and access to water.3 First known as the Central American Water Tribunal, the tribunal was created in 1998 “with the purpose of contributing to the resolution of conflicts related to water ecosystems in Central America.”4 In an attempt to respond to the “democratic deficit in water management,” the founders of the tribunal created a new venue that could resolve water disputes, promote cleaner technologies, and promote adequate water resource management.5 The tribunal also created an outlet for democratic participation, allowing the marginalized groups who do not typically have access to traditional avenues for justice to have a forum to voice their complaints.6 The LAWT has held six hearings, received fifty-eight cases, and handled more than 250 consultations since its inception in 1998.7
About the Case Selection Process
Communities, individuals, or an organization may file an action with the tribunal against public institutions, individuals, or industries that contaminate, misuse, or threaten water resources.8 The LAWT Technical Commission, composed of professionals and technicians, selects those cases best supported by scientific and technical evidence demonstrating a negative impact on the environment.9 In making a determination, members of the Technical Commission may make site visits to evaluate a case, and ultimately select cases that pose the greatest hazard to the largest population in a utilitarian sort of way.10 After a case is chosen, the LAWT formally notifies the opposing party accused of environmental degradation so that it may respond to the allegations at a public hearing.11
The Public Hearing
The public hearing itself is a high-profile event, where civic organizations in Latin America expose and allege water mismanagement, the accused have the opportunity to respond, and a jury evaluates the situation.12 The actual structure of the hearing is much like any other case where the plaintiffs present their case (in thirty minutes), the accused present their defense (in thirty minutes), testimony from witnesses is given, cross examination occurs, and plaintiff and defendant give a closing arguments (in ten minutes).13 Jurors—consisting of members from various professional backgrounds with expertise in the public, educational, or scientific fields from predominantly Latin American countries—are given the opportunity to examine the evidence and question the witnesses before deliberations.14 The verdict is then announced publicly. Unlike most proceedings, however, this verdict does not assign guilt or designate responsibility; instead, the verdict contains detailed recommendations for each side and offers a list of responsibilities of each party to resolve the water conflict and to achieve environmental justice.15 Notably, the verdict itself has no judicial power, and the verdict is not binding on the parties; however, it becomes a baseline for future negotiations between involved parties.16 Because the judgment is not based on legal fault, the LAWT cannot apply financial sanctions or administrative penalties.17 However, the tribunal can propose a “moral sentence” or encourage a social refusal by Latin-American citizens against those who harm the water resources of the community.18
Not Your “Typical” Arbitration
In order to understand how the LAWT stands out as an innovative ADR system, it is important to consider the shortcomings of arbitration proceedings generally. Many prominent scholars contend that arbitration undermines the effective administration of justice in several ways, particularly
(1) its confidential nature,
(2) its binding nature, and
(3) its inability to protect the disadvantaged. However, the LAWT is uniquely designed to avoid these so called “pitfalls” of traditional arbitration. Instead, the LAWT’s innovative format addresses these potential shortcomings in the following ways
Confidential Nature of Arbitration Proceedings
The confidential nature of arbitration is a big concern. Precedence cannot be created when the result of arbitration is confidential. Originally, a company that created a product dangerous to the public would be held accountable through multiple lawsuits from injured plaintiffs; now, however, the company can quietly resolve each dispute in arbitration. The accountability factor slowly vanishes the more arbitration is used. Likewise, the company that continues to pollute can quietly pay off the local farmers or fishers without the threat of multiple lawsuits which might otherwise provide a real reason to stop polluting.
The LAWT is not confidential. Instead, it is a public forum for individuals to voice their concerns and challenge the companies and governments to clean up their act. While LAWT findings do not create legal precedent, the public nature of the dispute allows verdicts to serve as deterrents against future misdeeds. LAWT verdicts are publicly announced so that both parties can be held accountable while impartial monitoring is guaranteed. Mass media plays a role in spreading the tribunal resolution to various parts of the world and in inducing action from the international realm. Within the international arbitration community, more and more parties have consented to having public hearings and posting their awards. Although the confidential nature of arbitration is typically an advantage because it removes the matter from the public eye and shields both parties’ international reputation, many parties agree to public arbitrations for the sake of transparency and public diplomacy.19 There are benefits to public arbitration, but these options have not yet been fully explored. Transparent arbitrations have the potential to create national healing after diplomacy and negotiations have failed. Transparent arbitrations can also be used by public institutions, NGOs, and individuals to put moral, political, and public pressure on accused polluters who refuse to follow LAWT recommendations. Furthermore, the public nature of the tribunal ensures dissemination of information to the public regarding the water management problems in Latin America.
Binding Nature of Arbitration
The binding nature of arbitration is also a great concern. Typically, arbitration is binding, and there are few ways to appeal the dispute.20 The finality of arbitration is one of the many advantages of arbitration, depending on the vantage point. In many fields, arbitration is also less formal, so the rules of evidence and other formal aspects of discovery and litigation—that typically protect individual due process—are absent.
The LAWT is nonbinding, and the fact that the LAWT is non-binding ensures that the parties still have a litigation alternative. Moreover, companies do not have to substitute LAWT arbitration for litigation since litigation is still possible according to the parameters of the LAWT tribunal. The arbitral format of the LAWT allows plaintiffs to hold defendants accountable to existing environmental laws. The non-binding nature of the LAWT means that a different kind of justice is served—a kind of justice that feeds the moral outrage and the public’s need to speak out against injustice. The LAWT empowers the communities that bring grievances because, through the tribunal’s resolution, individuals can make positive change to protect precious water resources. Furthermore, both parties are strengthened if they can come together and resolve the dispute. Many might consider the non-binding nature of the LAWT to be a hindrance to its success. The verdict becomes a tool in negotiations and a way for the community to pressure and raise concerns globally using mass media. This type of social pressure can work with governments and can even become successful with big corporations.21 Given the non-binding nature of the verdict, a glaring error of the tribunal is how difficult it is to persuade both parties to submit to the tribunal. Although the power is in the defendant’s hand as to whether or not to heed the tribunal’s recommendation, it is the “right” thing to do—or at least that is the underlying message the tribunal hopes to achieve. To be successful, the tribunal must appeal to each individual’s sense of ethics.
Inability to Protect Disadvantaged
ADR has been criticized for its failure to create judicial precedence. Many critics worry that it could even become a “tool for diminishing the judicial development of legal rights for the disadvantaged.”22 Despite the rising popularity of ADR, scholars and academics have asserted various concerns about whether negotiation, mediation, and arbitration are particularly appropriate alternatives in areas such as family law, civil rights, and environmental law.
Although there may be concerns about resolving environmental disputes between big business or big government and weaker communities outside the Courtroom, the LAWT does not bar the parties from taking subsequent legal action. Alternative dispute resolution (ADR) methods attempt to settle disputes between parties outside of the courtroom. One of the purposes of the LAWT is to produce recommendations and moral sanctions that can be used later in negotiations; thus, the result of the arbitration ideally furthers the negotiation process. In contrast, in collective bargaining situations, arbitration tends to discourage negotiations because parties often defer to the arbitrator instead of trying to resolve the issues between themselves.23 Because the LAWT still permits subsequent legal action, there is no likelihood that the parties will solely defer to the decision of the tribunal. Instead, the outcome of the tribunal becomes a tool in future negotiations, instead of the converse.
Because the tribunal is young and the LAWT has heard relatively few cases, it is difficult to gauge the effect that the verdicts and recommendations have had given the relatively short life of the tribunal. However, the tribunal utilizes a creative approach by employing a combination of various dispute resolution tools. The LAWT operates much like arbitration yet it circumvents the typical concerns that accompany arbitration including (1) the confidential nature of arbitration, (2) the binding nature of arbitration, and (3) arbitrations inability to protect the disadvantaged. The hearing is public to ensure that the parties are held accountable through impartial monitoring and social pressure. The verdict is nonbinding, so the right to pursue future litigation is not waived. The tribunal verdict carries a moral force in the community that raises awareness of injustice around the globe. While still maintaining its effectiveness as essentially a de facto institution of social pressure, the tribunal avoids the typical disadvantages of traditional arbitration, creating a unique and powerful way to deal with water disputes.