Compliance assistance: a. Financial mechanisms. b. Capacity building, c. Transfer of technology

During the process of compliance to implement international environmental obligations, there are different stages, such as information, facilitation and management. In the case of environmental damage, the final stage is enforcement, leading to reparation. The category of financial assistance evidences a new approach to compliance, unveiling different possibilities to assist States in fulfilling their obligations.

There is a variety of techniques concerning information gathering/report-ing, the determination of damage and dealing with the specific consequences. Sometimes, the compliance processes have a preliminary stage that consists in compliance assistance. This is a strategic approach aligned with the prevention of a breach and of environmental damage. These mechanisms tackle the question of non-compliance before a problem of financial and technological capacity occurs.[1] Costs and technical expertise necessary to ensure compliance with MEAs may not be available in all States. Ideally, in terms of efficiency, the costs of compliance should be reduced.

All the different techniques can be grouped as ‘compliance facilitation’ and include capacity building, facilitating the creation of the necessary infrastructure for the implementation of environmental obligations; technical and financial assistance, mainly addressing developing States as well as efficiency; and minimising costs of compliance (for both developed and developing States). The diversity of mechanisms is such that no detailed categorisation is available, but broadly, the mechanisms can be divided into financial mechanisms, capacity building techniques and transfer of technology.

Techniques to facilitate IEL compliance are multidimensional, involving legal aspects but also political and economic dimensions. These techniques are included below as innovative approaches adopted by environmental treaties. Technical assistance in the shape of capacity building and technology transfer is used to enhance compliance skills and capabilities. Various mechanisms are referred to in the provision of financial and economic assistance through development aid, environmental funds, technology transfer and capacity building, among others. In practice, many international environmental treaties provide for a mix of these different instruments. To facilitate the analysis of their specific contribution to IEL compliances, these different mechanisms are presented in separate sections.

a Financial mechanisms

Financial assistance has been included as an important technique in the implementation of MEAS, including public, private or public-private mechanisms. Chapter 37 of Agenda 21 refers to ‘(t)echnical cooperation, including that related to technology transfer and know-how, [which] encompasses the whole range of activities to develop or strengthen individual and group capacities and capabilities’.

An example of this is the Environment Fund set up under the UNEP, which is made up of contributions by Member States. The Fund provides a comprehensive worldwide framework for funding, focussing on the environmental dimensions of the 2030 Agenda.[2]

Each MEA has established a specific financial mechanism not only to support the implementation efforts of the State Parties but also to undertake projects that enhance the implementation of MEAs.

Financial assistance has spread quickly in IEL after the acknowledgement that developing country parties to MEAs may face significant costs as a result of implementing measures. Costs may make it difficult for States to undertake measures and change their behaviour. This acknowledgment led to the inclusion of provisions of a financial mechanism within MEAs. Some MEAs also include rules that govern the different financial mechanisms.

Under MEAs there are a plethora of financial of mechanisms with different formats:

  • • Trust Funds are a common format of these mechanisms adopted under the framework of regional conventions and MEAs. An example of this is the Regional Seas Conventions negotiated under the auspices of UNEP. These Trust Funds provide seed money to implement actions that are intended to enhance the capacity building of the parties in order to implement international environmental treaties.
  • • The Global Environmental Facility (GEF) operates as the financial mechanism for the Convention on Biological Diversity (‘CBD’) and the United Nations Framework Convention on Climate Change (‘UNFCCC’). The GEF assists parties from developing countries with access to financial support to cover incremental costs resulting from the implementation of the respective MEA at the national level and the trans-boundary level. In addition, GEF Funds projects in certain focal areas, such as ozone depletion, climate change, biodiversity, shared water resources, desertification and chemicals.
  • • Other Funds: Under the UNFCCC and the Kyoto Protocol three new Funds to promote compliance by developing countries were established.

b Capacity building

Effective implementation as the main goal of IEL requires capacity building in the form of personnel training, expert assistance, infrastructure and reinforcements of the administrative structure. Under the framework of sustainable development and ‘good environmental governance’ capacity building at all levels, one of the main aims is fostering the participation of existing institutions and processes, and stakeholders.

This mechanism has traditionally been contained in environmental treaties and in other similar treaties, such as the World Heritage Fund that was created to assist State Parties in identifying sites of outstanding value, including those of natural value.[3] This approach is by no means confined to cultural heritage and is then applied in IEL.

The application of the ‘common but differentiated responsibilities’ principle led to different obligations for developed and developing countries, requiring that developed countries take the lead in protecting the ozone layer and stopping the use of ozone-depleting substances.

Principle 7 of the Rio Declaration, listing some basic principles of IEL, establishes:

States shall cooperate in a spirit of global partnership to conserve, protect, and restore the health and integrity of the Earth ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.

Mechanisms providing financial, technical and technological assistance to developing countries to support them in building up their environment management capacity are numerous; they have been incorporated into international environmental treaty practice.

c Technology transfer

Technology transfer (‘TT’ or ‘Tech Trans’) is of the utmost importance for developing countries in the IEL and is vital for global environmental governance. Many horizontal UN goals and instruments, as well as various MEAs, embody specific provisions on the transfer of technology, including transfer of intellectual property rights or technical expertise to the public or private sectors.

For example, Agenda 21 in Chapter 34, addressing ‘environmentally sound technologies’, refers repeatedly to the need to ‘strengthen the technical and institutional capacity in developing countries’. TT entails more complex support operations that entail a certain level of financial assistance, provision of technologies and the transfer of intellectual property rights (‘IPRs’) relating to patents and licences, raising questions of competitiveness and trade issues.

The conditions for and the state of technology transfer depend upon the sector: for instance, traditionally, this has been the case in conservation and sustainable use of biodiversity, climate change and the control of persistent organic pollutants.[4] Other examples of technical assistance are foreseen in the Montreal Protocol financed by its Multilateral Fund, particularly after the ‘London Amendment’ which established it and introduced a provision on the ‘transfer of technology’. Although there is a financial component to the technology transfer, the spirit of the reform was intended to make the treaty more inclusive and take more States on board, particularly developing and emerging countries, assisting them with the substitution of controlled substances. Therefore, the amendment allowed sufficient time for these countries to gradually convert their industrial infrastructure into the new system, allowing for the phase out of the previously used substances, with the help of financial assistance and transfer of IPRs. To deal with some issues more effectively, compulsory licences to use IPRs in the development of specific mechanisms are common, like those adopted in the climate change regime.

5 Spaces for voluntary compliance

States obey international law for multiple reasons, particularly when there is a binding norm mandating a certain behaviour so that the threat of the sanction functions as a deterrence. Under ‘soft’ IEL, voluntary commitments undertaken by States are based on their willingness to take on environmental commitments.02 In some sectors, these voluntary commitments are widely spread, such as in the global climate change regime or in other areas of regional importance, such as waste management. In an attempt to define voluntary compliance, it is conceived as an alternative to inter-state or state-imposed regulations on a state or a company’s behaviour. Proponents of voluntary compliance draw attention to the flexibility that it allows, enabling States to better adapt to changing circumstances. Along with the States, international enterprises have developed

a predominant role in promoting voluntary compliance with international environmental obligations.

What are the main reasons for voluntary compliance with IEL? Compliance with international accords through binding legal mechanisms is often imperfect and concerns only States (so far) operating on the international level. The inadequate choice of proper enforcement of national environmental laws and regulations often leads to lack of implementation.[5] This broader approach to compliance emphasises the adoption of voluntary commitments in paving the way for the adoption of more stringent commitments imposed by binding norms. Some international environmental instruments already rely on voluntary compliance by the parties, such as in the climate change regime.

Examples of voluntary compliance are disseminated throughout the areas of IEL, particularly in forestry and air pollution.53 Based on the experience obtained through the voluntary approaches used in some sectors, these approaches can expand to cover other areas of IEL. Differences in the approach taken by different sectors bring various implications to IEL as a whole. The underlying causes for these mechanisms are the need to enhance implementation and compliance with IEL. In international law, clearly, States exercising their sovereignty can take on voluntary commitments to address IEL issues.

Voluntary approaches present several challenges: namely coverage, transparency and credibility of the mechanisms. Furthermore, other issues concern the monitoring and sanctions for non-compliance. Based on the experiences of voluntary compliance so far it is possible to draw more general lessons to improve environmental performance and compliance with IEL. In the context of other branches of international law, several voluntary compliance projects have been undertaken to Fund, for instance, emission reduction technologies or mechanisms.

Voluntary commitments are thought to provide greater flexibility than traditional legally binding commitments; States enjoy more flexibility in order to tackle specific or new environmental problems as they arise. On average, transaction costs are significantly less. Leading by example, through the assumption of voluntary commitments under non-binding legal instruments, States can set expectations about the way in which States and other actors should behave, fostering common values.

Consensus on non-binding legal instruments is easier to achieve in IEL, as demonstrated by the climate change regimen and environmental sustainability. Examples of this are the voluntary commitments made by States to control

greenhouse gases (GHGs), as demonstrated by the Copenhagen Agreements,[6] and to adopt measures promoting sustainability, lacking a binding legal instrument.

Voluntary compliance can be a win for all the parties involved, creating more transparency and accountability. Environmental impact assessments make voluntary compliance procedures transparent and more rights-based, including public participation. Engaging the community is key when approving large projects. It means having a multi-pronged approach to compliance, including all the possible avenues to guarantee IEL implementation.

One of the controversial aspects is how to strengthen environmental compliance and enforcement in the event of a breach: for instance, when pollution incidents occur. As possible solutions, one can require an independent environmental review of actions. Environmental compliance certificates could also contribute to fostering the implementation of environmental norms. Another related controversial issue concerns the wording in which the voluntary commitments are formulated, which could turn them into unenforceable commitments. ‘Loose wording’ often leads to less enforceable commitments. There may be weakness in the norms regulating voluntary compliance or a lack of appropriate legal framework to regulate compliance. To reduce, minimise or avoid lack of compliance, different organisations should follow up on projects or voluntary commitments.

There are certain similarities between the different models of voluntary compliance, and some lessons can be learned from each other. There may be inter-governmental aspects across similar types of projects, even in transboundary cases. Technology can influence regulations, and it is possible to use technology to drive change and provide significant compliance. Data systems should allow for a proper follow-up on the different processes of voluntary compliance. It is worth asking about the role which NGOs and agencies play in compliance. NGOs can facilitate data for institutions to make a followup. Indigenous peoples and indigenous communities should have the opportunity to participate in voluntary compliance projects that involve them. This can include working to build these relationships, communicate with the various stakeholders and develop a voluntary compliance cycle. Another significant feature is the power to form the conditions and commitments, and decide on the language and whether it is enforceable. Equally important is determining who does the checking and how the veracity of data is ensured. There are different degrees of innovation observed in different IEL provisions. Voluntary compliance demonstrates that IEL never stands still; it always changes.

Bibliography

Abbott, Frederick M, ‘Innovation and Technology Transfer to Address Climate Change: Lessons from the Global Debate on Intellectual Property and Public Health’ Issue Paper No. 24 (2009), available at https://www.files.ethz.ch/isn/104368/2009_06_ innovation_and_technology_transfer.pdf accessed 1 April 2020.

Ausubel, Jesse H and Victor, David G, ‘Verification of International Environmental Agreements’ (1992) 17 Annual Review of Energy and the Environment, pp. 1-43.

Barboza, J, The Environment, Risk and Liability in International Law (Brill 2010).

Beyerlin, U, Stoll, Peter-Tobias and Wolfrum, Rudiger, Conclusions Drawn from the Conference on Ensuring Compliance with MEAs, available at https://www.ippc.int/ static/media/files/publications/en/l 182346189781_conclusionsfrom_MEA_Com-pliance_conf.pdf accessed 1 April 2020.

Boyle, A, ‘Saving the World? Implementation and Enforcement of International Environmental Law through International Institutions’ (1991) 3(2) Journal of Environmental Law, pp. 229-245.

Boyle, A, ‘Some Reflections on the Relationship of Treaties and Soft Law’ (1999) 48(4) International and Comparative Law Quarterly, pp. 901-913.

Cardesa-Salzmann, A, ‘Constitutionalising Secondary Rules in Global Environmental Regimes: Non-Compliance Procedures and the Enforcement of Multilateral Environmental Agreements’ (2012) 24(1) Journal of Environmental Law, pp. 103-132.

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

Chinkin, C, ‘Normative Development in the International Legal System’ in Dinah Shelton (ed.), Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (Oxford University Press 2003), pp. 30-31.

Dupuy, Pierre M and Vinuales, Jorge, ‘The Sources of International Environmental Law.’ in PM Dupuy and J Vinuales (eds.), International Environmental Law (Cambridge University Press 2015), p. 271.

Faure, Michael, De Smedt, Peter, Stas, An, (eds), Environmental Enforcement Networks: Concepts, Implementation and Effectiveness (Edward Elgar Publishing 2015).

Gelpe, Marcia, ‘Environmental Enforcement: Encouraging Voluntary Compliance with Environmental Laws’ (1996) 19(1) Israel Environment Bulletin, p. 5756.

Gunningham, Neil and Sinclair, Darren, ‘Voluntary Approaches to Environmental Protection: Lessons from the Mining and Forestry Sectors’, OECD Global Forum On International Investment Conference on Foreign Direct Investment and the Environment - Lessons to be Learned from the Mining Sector, 7-8 February 2002, available at https://www.oecd.org/env/1819792.pdfaccessed 1 April 2020.

Guruswamy, L, International Environmental Law in a Nutshell (4th edn West 2012), p. 74. Hale, Thomas and Held, David, (eds), The Handbook of Transnational Governance: Institutions and Innovations (Polity Press 2011).

Halliday, Terence C and Shaffer, Gregory, (eds), Transnational Legal Orders (Cambridge University Press 2015).

ICTSD Programme on IPRs and Sustainable Development, Issue Paper No. 24, FSU College of Law, Public Law Research Paper No. 383, FSU College of Law, Law, Business 8c Economics Paper No. 09-18, available at SSRN: https://ssrn.com/ abstract= 1433579 or http://dx.doi.org/10.2139/ssrn.1433579 accessed 1 April 2020.

INECE, Principles of Environmental 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.

Jacobson, Harold K and Weiss, Edith Brown, ‘Strengthening Compliance with International Environmental Accords: Preliminary Observations from a Collaborative Project’ (1995) 1(2) Global Governance, pp. 119-148.

Koh, Harold Hongju, ‘Why Do Nations Obey International Law?’ (1997) Faculty Scholarship Series 2101, available at https://digitalcommons.law.yale.edu/fss_papers/2101 accessed 1 April 2020.

Lang, Winfried, ‘Compliance Control in International Environmental Law: Institutional Necessities’ (1996) 56 ZAOERV, available at https://www.zaoerv.de/56_ 1996/56_1996_3_a_685_695.pdf accessed 1 April 2020.

Loibl, G, ‘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.

Palmer, Geoffrey, ‘New Ways to Make International Environmental Law’ (1992) 86(2) The American Journal of International Law, pp. 259-283.

Prip, C, Rosendal, G Kristin, and Tvedt, Morten Walloe, The State of Technology Transfer Obligations in Global Environmental Governance and Law: Biodiversity Conservation and Sustainable Use, available at https://www.sprep.org/attachments/VirLib/ Global/state-technology-transfer.pdf accessed 1 April 2020.

Sands, Philippe, Peel, Jacqueline, Fabra, Adriana, and MacKenzie, Ruth, Principles of International Environmental Law (3rd edn CUP 2012).

Skjxrseth, J, Stokke, Olav, and Wcttestad, Jorgen, ‘Soft Law, Hard Law, and Effective Implementation of International Environmental Norms’ (2006) 6(3) Global Environmental Politics, pp. 104-120.

UN Environment Programme, About the UN Environment Programme, available at https://www.uncnvironment.org/about-un-environment/what-we-do accessed 1 April 2020.

UN, Environmental Law Capacity Building Programme for Sustainable Development, available at https://sustainabledevelopment.un.org/partnership/?p=1523 accessed 1 April 2020.

UNEP, Handbook for the Montreal Protocol (14th ed 2020), available at https://ozone. unep.org/treaties/montreal-protocol#nolink accessed 1 April 2020.

UNEP, the Ozone Secretariat, available at https://ozone.unep.org/ accessed 1 April 2020.

United Nations Conference on the Human Environment, Stockholm Conference on the Human Environment in 1972, available at https://legal.un.org/avl/ha/dunche/ dunche.html accessed 1 April 2020.

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%20 u nder%2 0selected%2 0Multilateral%2 0Environmental%2 OAgreements-2 007761. pd-f?sequcnce=3&isAllowed=y accessed 1 April 2020.

Wettestad, Jorgen, ‘Monitoring and Verification’, in Daniel Bodansky, Jutta Brunnee, and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2008), pp. 975-976.

  • [1] Pierre-Marie Dupuy and Jorge Vinuales, ‘The Sources of International Environmental Law’ in International Environmental Law (Cambridge University Press 2015), p. 271. 2 Frederick M. Abbott, ’Innovation and Technology Transfer to Address Climate Change: Lessons from the Global Debate on Intellectual Property and Public Health’ (2009). ICTSD Programme on IPRs and Sustainable Development, Issue Paper No. 24, FSU College of Law, Public Law Research Paper No. 383, FSU College of Law, Law, Business & Economics Paper No. 09-18, available at SSRN: https://ssrn.com/abstractsl433579 or http://dx.doi.org/10.2139/ssrn.1433579 accessed 1 April 2020. 3 Agenda 21, Chapter 37, Rio de Janerio, Brazil, 3 to 14 June 1992.
  • [2] UN Environment Programme, About the UN Environment Programme, available at https:// www.unenvironment.org/about-un-environment/what-we-do accessed 1 April 2020. 2 UN, Environmental Law Capacity Building Programme for Sustainable Development, available at https://sustainabledevelopment.un.org/partnership/?p=1523 accessed 1 April 2020.
  • [3] International Assistance» Acting for World Heritage worldwide, available at https://whc.unesco. org/en/intassistance accessed 1 April 2020. 2 1992 Rio Declaration, Principle 7. 3 Agenda 21, Chapter 34.
  • [4] Christian Prip, G. Kristin Rosendal, and Morten Walloe Tvedt, The State of Technology Transfer Obligations in Global En vironmental Governance and La jp: Biodiversity Conservation and Sustain -able Use, available at https://www.sprep.org/attachments/VirLib/Global/state-technology-transfer.pdf accessed 1 April 2020. 2 The London Amendment (1990): The Amendment to the Montreal Protocol Agreed by the Second Meeting of the Parties (London, 27-29 June 1990), Article 10, available at https://ozone. unep.org/treaties/montreal-protocol/amendments/london-amendment-1990-amendment-montreal-protocol-agreed accessed 1 April 2020. 2. b. Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer, London, 29 June 1990. The amendment was adopted by Decision 11/2 of 29 June 1990 at the Second Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_ no=XXVII-2-b&chapter=27&clang=_en accessed 1 April 2020. 3 Koh (n 29). 4 Marcia Gelpe, ‘Environmental Enforcement: Encouraging Voluntary Compliance with Environmental Laws’ (1996) 19(1) Israel Environment Bulletin, p. 5756.
  • [5] Geoffrey Palmer, ‘New Ways to Make International Environmental Law’ (1992) 86(2) The American Journal of International Law., pp. 259-283. 2 Neil Gunningham and Darren Sinclair, ‘Voluntary Approaches to Environmental Protection: Lessons from the Mining and Forestry Sectors’, OECD Global Forum On International Investment Conference on Foreign Direct Investment and the Environment - Lessons to be Learned from the Mining Sector, 7-8 February 2002, available at https://www.oecd.org/env/18I9792. pdf accessed 1 April 2020.
  • [6] Agreement adopted at the Climate Conference in Copenhagen, Denmark, in December 2009. 2 Harold K. Jacobson and Edith Brown Weiss, ‘Strengthening Compliance with International Environmental Accords: Preliminary Observations from a Collaborative Project’ (1995) 1(2) Global Governance, pp. 119-148.
 
Source