International environmental law compliance in context I: tools

International environmental compliance: instruments and actors

This chapter focusses on international environmental law (IEL) compliance in context, examining actors and tools. The chapter examines minimum compliance requirements and specific tools set out in MEAs. It deals with the actors and the progress in compliance, also examining cross compliance provisions (depending on the different specialised systems). It examines the practical guidelines on compliance with international legal commitments in the environmental field issued by international organisations.1

Treaty provisions may promote implementation and compliance with the norms; set up a completely new compliance system, generating an external supervisory body; or rely on pre-existing organisations to secure compliance. Wherever a treaty creates new mechanisms, institutions and techniques to foster compliance, there is an express (or implicit) conferral of powers on relevant organisations and authorities which may also comprise means to deal with non-compliance or violation of the provisions of treaties.

Factors which have an influence on compliance include inter alia self-interest on the part of the addressees of the norms, incentives created under the specific legal framework, implementation promotion mechanisms and tools, early warning systems, legal threats and external pressure derived from non-legal mechanisms.

Given the diverse nature of IEL, in the recent evolution there has been a proliferation of mechanisms and tools which reflect States’ consensuses on crucial environmental problems. The sophistication observed in these mechanisms may include intergovernmental tools relying on states’ actions without significantly altering state behaviour; more advanced mechanisms geared into MEAs could introduce new tools or even create a new market for environmental products or services, such as the programme REDD (‘reducing emissions from deforestation and degradation’) or emissions trading systems.

1

Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulating Agreements (Harvard University Press 1995).

In the move from a hard compliance system to a non-compliance system, new stages in the non-compliance processes are observed. Some mechanisms are activated before non-compliance is detected and are aimed at completing a follow-up of the implementation of IEL norms. For this purpose, reporting mechanisms instituted under MEAs communicating information about a particular State’s actions in implementing treaty provisions serve to monitor compliance. More formal mechanisms are put in place when a breach of the treaty occurs, requiring the determination of non-compliance and the adoption of measures as a consequence of a behaviour. Facilitation of compliance entails the adoption of a series of measures geared towards assisting State’s in preparation wherever necessary to comply with treaty obligations. In turn, managing of non-compliance alludes to all the tools and mechanisms available to address lack of implementation. The legal basis for the establishment of non-compliance mechanisms is often set out in regional and international environmental agreements through an explicit provision (‘enabling clause’). This stipulates the creation of a compliance mechanism within a certain period after the treaty comes into effect.[1]

Depending on how institutionalized the regime is and which administrative structure or organization has been chosen, there might be different actors performing roles in controlling the implementation by State Parties and assessing the effects of non-compliance. In each of these regimes, international institutions can have important responsibilities for monitoring the impact of various activities on the quality of the environment.

Monitoring and reporting have become the most-used mechanisms across the various MEAs, with the main treaty bodies creating mechanisms in this regard. As for the evolution of the system, the Montreal Protocol on Substances that Deplete the Ozone Layer, introduced in 1987, represented the first of more advanced systems of compliance control in this particular environmental field. It meant a significant change in the means of ensuring compliance with MEAs, moving from a confrontational scheme based on compliance control to a system articulated around the ideas of cooperation and partnership.

The Montreal Protocol system3 is innovative in several ways. As a non-adversarial mechanism, it encompasses three different institutional bodies in charge of compliance control.[2] From this institutional perspective, their respective functions are interlinked. The Secretariat (also known as the ‘Ozone Sectretariat’) performs not only a bureaucratic function, as it is in charge of compiling relevant data from the Parties, but also processes the data, analysing them to determine whether there is a lack of compliance. Besides, the Secretariat is endowed with the power to begin an ad-hoc investigation while carrying out its duties, if it finds out that a Party has not fulfilled its obligations. The Implementation Committee, composed of‘Parties’, monitors compliance with the obligations. The political body is the Meeting of the Parties, comprising the members of the Protocol, and can take measures ranging from sanctions to assistance. These include adopting interim calls and recommendations: It can award or withhold assistance through the Multilateral Fund or the Global Environment Facility (GEF). The sanctions include the suspension of rights and privileges under the Protocol in trade and transfer of technology. Procedurally, this non-confrontational method of law enforcement may guarantee a better engagement of the Parties with ME As, leading to better levels of compliance with treaty obligations.

Other systems instituted under MEAs still involve either a single compliance control body or a dual system with different bodies. For instance, under the international climate regime, the UN Framework Climate Convention foresees two separate paths for individuals and collective implementation. Some other significant features of this system consist of the creation of the so-called Subsidiary Body for Implementation (Article 10), which does not possess direct monitoring powers regarding individual parties but instead performs functions in terms of collective implementation by assessing ‘the overall aggregated effect of the steps taken by the Parties’. Some issues regarding its inefficiency have been raised, taking into consideration its nature as an open-ended body. Government representatives who are members of this body should be ‘experts on matters related to climate change’.11 Another weakness is that the body does not have any investigative or recommendatory functions but rather examines the information received and assists the Conference of the Parties.

In an overview of the functions performed by various compliance mechanisms observed under MEAs, the following methods can be identified:

Data-collection functions: This function is related to self-reporting obligations on the part of State Parties and could consist of the mere registration of data submitted by governments (annual reports that the Parties themselves prepare on their national implementation) but could also include the outcomes of investigations undertaken by the international body itself.[3] Review functions: Compliance bodies scrutinise data and information submitted by governments on their performance and/or information obtained by other means. The revision can consist of acknowledging the submissions and tracking the information provided or performing an exhaustive evaluation of the reports, benchmarking them against operating parameters set out in the applicable legal framework.

Investigative functions: Under some MEAs the control body has powers to trigger an investigation if the information received is insufficient or inadequate. The compliance bodies can request additional written information from the respective government. These functions usually include the possibility to pose questions to the representatives of the government under scrutiny. Although some treaties allow compliance bodies to carry out ‘on-site inspections’, these require the consent of the State to be scrutinised.

Recommendatory functions: Bodies of a political nature are usually tasked with making recommendations after drafting conclusions based on the information provided when there is evidence that the State in question has not fulfilled its obligations. Recommendations can be issued directly or indirectly, publicly or not. The decision to make a report or recommendations available publicly determines the amount of pressure placed on the State to comply (a sort of ‘naming and shaming’). Sometimes, the expert or the scientific body issues the recommendations to the political body to address deficient compliance or non-compliance.

Execution functions: This implies adopting measures that are necessary under the relevant treaty that go beyond mere monitoring and evaluating activity. Measures can take different forms, ranging from calls for action to sanctions. Sanctions can be imposed in different forms, such as suspension of rights and membership (wherever applicable) and trade embargos due to

a lack of environmental compliance. Measures to be taken are not only punitive; there are assistance measures (or sometimes suspending of assistance), often used when a State lacks the technical capacities, administrative skills and/or financial means to fulfil its obligations adequately.

These various functions or roles can be performed by one compliance body or by more than one. Pursuant to the specific MEA’s wording the tasks (revision, investigation, recommendation) can be allocated to institutions of a diverse nature, and tasks will be accomplished by an expert or a scientific body. In order to guarantee independence and effectiveness, these bodies are composed of highly qualified individuals acting independently of any governmental influence.

MONTREAL PROTOCOL

Meeting of the Parties

Decisions on non-compliance: Argentina

Decision XIII/21: Compliance with the Montreal Protocol by Argentina

The Thirteenth Meeting of the Parties decided in decision XIII/21:

  • 1 To note that Argentina ratified the Montreal Protocol on 18 September 1990, the London Amendment on 4 December 1992, the Copenhagen Amendment on 20 April 1995, and the Montreal Amendment on 15 February 2001. The country is classified as a party operating under Article 5(1) of the Protocol and its country programme was approved by the Executive Committee in 1994. Since approval of the country programme, the Executive Committee has approved $43,287,750 from the Multilateral Fund to enable compliance in accordance with Article 10 of the Protocol;
  • 2 Argentina’s production baseline for Annex A, group I substances is 2,745.3 ODP-tonnes. Argentina reported production of 3,101 and 3,027 ODP-tonnes of Annex A, group I substances in 1999 and 2000 respectively. Argentina responded to the Ozone Secretariat’s request for data regarding the control period 1 July 1999 to 30 June 2000. Argentina reported production of 3,065 ODP-tonnes of Annex A, group I controlled substances for the production freeze control period of 1 July 1999 to 30 June 2000. As a consequence, for the control period 1 July 1999 to 30 June 2000, Argentina was in non-compliance with its obligations under Article 2A of the Montreal Protocol;
  • 3 To request that Argentina submit to the Implementation Committee a plan of action with time-specific benchmarks to ensure a prompt
  • (Continued)

return to compliance. Argentina may wish to consider including in its plan actions to establish production quotas that will freeze production at baseline levels and support the phase-out;

4 To closely monitor the progress of Argentina with regard to the phase

out of ozone depleting substances. To the degree that Argentina is working towards and meeting the specific Protocol control measures, Argentina should continue to be treated in the same manner as a party in good standing. In this regard, Argentina should continue to receive international assistance to enable it to meet these commitments in accordance with item A of the indicative list of measures that might be taken by a Meeting of the Parties in respect of non-compliance. However, through this decision, the parties caution Argentina, in accordance with item B of the indicative list of measures, that in the event that the country fails to return to compliance in a timely manner, the parties shall consider measures, consistent with item C of the indicative list of measures. These measures may include the possibility of actions available under Article 4, such as ensuring that the supply of CFCs (that is the subject of non-compliance) is ceased and that importing parties are not contributing to a continuing situation of non-compliance.

Source: https://ozone.unep.org/treaties/montreal-protocol/ meetings/thirteenth-meeting-parties/decisions/decision-xiii21-compliance?source=decisions_by_article_topic_relation&args% 5B0%5D=69&parent=2197&nextParent=2198

  • [1] Gerhard Loibl, ‘Compliance Procedures and Mechanisms’, in Malgosia Fitzmaurice, David M. Ong, and Panos Merkouris (eds), Research Handbook on International Environmental Law (Edward Elgar 2010), pp. 427-428. 2 United Nations Environment Programme, Compliance Mechanisms under Selected Multilateral Environmental Agreements (UNEP 2007), available at https://wedocs.unep.org/bitstream/ handle/20.500.11822/7507/-Compliance%20Mechanisms%20under%20selected%20Multi-lateral%20Environmental%20Agreements-2007761.pdf?sequence=3&isAllowed=y accessed 1 April 2020. 3 Ulrich Beyerlin, Peter-Tobias Stoll and Rüdiger Wolfrum, Conclusions Drawn from the Conference on Ensuring Compliance with MEAs, available at https://www.ippc.int/static/media/ files/publications/en/1182346189781_conclusionsfrom_MEA_Compliance_conf.pdf accessed 1 April 2020.
  • [2] It comprises the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer (with all the amendments), including the 2016 Kigali Amendment to the Montreal Protocol. All treaties available at https://ozone.unep. org/sites/default/files/2019-12/The%200zone%20Treaties%20EN%20-%20WEB_final.pdf accessed 1 April 2020. 2 UNEP, Handbook for the Montreal Protocol (14th ed 2020), available at https://ozone.unep.org/ treaties/montreal-protocoltfnolink accessed 1 April 2020. 3 UNEP, the Ozone Secretariat, available at https://ozone.unep.org/ accessed 1 April 2020. 4 Montreal Protocol, Article 7. 5 UNFCCC, Articles 8, 9 and 10. 6 UNFCCC, Article 10.2.a. 7 Ibid.
  • [3] Ulrich Beyerlin, Peter-Tobias Stoll and Rüdiger Wolfrum, Conclusions Drawn from the Conference on Ensuring Compliance with MEAsy in Beyerlin, Stolll and Wolfrum (eds), Ensuring Compliance with Multilateral Environmental Agreements: A Dialogue between Practitioners and Academia (Brill 2006), available at https://www.ippc.int/static/media/files/publications/ en/1182346189781_conclusionsfrom_MEA_Compliance_conf.pdf accessed 1 April 2020. 2 1N ECE, Principles of En vironmental Compliance and Enforcement Handbook International Network for Environmental Compliance and Enforcement pages 54 and 57 (INECE April 2009), available at http://themisnetwork.rec.org/uploads/documents/Tools/inece_principles_handbook_ eng.pdf accessed 1 April 2020. 3 Ibid.
 
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