Non-compliance with international environmental law: ways to deal with it

Non-compliance defines a situation in which IEL norms have not been completely fulfilled, or adequate implementation measures have not been taken by the addressees of the norms (in most of the cases, States). Each MEA establishes institutional arrangements to adequately monitor the implementation of norms and guarantee compliance with IEL.[1]

Assessing compliance and non-compliance with a particular MEA requires a better grasp and understanding of the specific legal framework set up by the MEA. Rather than merely examining the formal obligations imposed on the States, one needs to look beyond the norms to identify the different aspects influencing compliance with IEL norms. The evolution observed in this field shows a shift from the traditional and formal mechanisms used in monitoring compliance to more collaborative solutions.

Sometimes, compliance with IEL is articulated through mechanisms fostering ‘partnership solutions’ (those which require the collaboration or consent of concerned Party States) comprising reporting obligations, inspections, monitoring, assistance and a certain level compliance control. Their main goal is to avoid non-compliance, addressing different levels of state inability to conform to Treaty obligations. Non-confrontational mechanisms could be classified into different categories: compliance control, compliance assistance and ad-hoc or ‘tailored’ mechanisms.

Compliance control mechanisms encompass a wide range of methods to guarantee compliance with treaty obligations. These mechanisms can be set up in an institutionalised and formalised manner to monitor the compliance of Treaty Parties. These mechanisms are instituted under the Treaty in question (or set up by a decision made by the main decision-making institution) which creates international bodies tasked with the function to check compliance.

Although not all compliance control mechanisms entail the imposition of formal sanctions, a transparency dimension related to access to information brings about more legitimacy while putting pressure on non-compliant parties. Transparency is key in this regard, a way of stating relevant facts for the implementation of treaty provisions. This generates a sort of a disciplinary effect for Treaty Parties as this objective statement of facts leads to the visibilisation of non-compliance. Transparency may also help parties to achieve better compliance levels by adopting appropriate measures.

Closely conversant to the issue of transparency, some ME As may provide for inspections as means to corroborate compliance or to determine non-compliance with treaty obligations. Inspections take place through in-situ visits to ensure either that implementing activities are conducted or that the right conditions are in place. It must be noted, however, that there is still resistance to this type of mechanism in IEL. This appears to be linked to the intervention in domestic affairs implied by inspections. Some MEAs (such as CITES) involve NGOs in the performance of those inspections. Under its legal framework, Treaty Parties have accorded Trade Records Analysis of Flora and Fauna in Commerce (TRAFFIC), together with the CITES Secretariat, to carry out inspections within the Treaty Parties’ territory.

Ad-hoc non-compliance procedures have the primary aim of addressing the lack of compliance with specific treaty obligations and can be triggered by any event that falls within the category of non-compliance. Like implementation review procedures, NCPs are applied more or less systematically to deal with cases of non-compliance. Under some MEAs, as in the case of the Montreal Protocol, the Climate Change Convention and the Desertification Convention, Treaty Parties, the Secretariat and the concerned State have been entitled to trigger the procedure. NGOs may request that a Treaty Party or the Secretariat start such a procedure. Other MEAs foresee the involvement of NGOs, which are on occasion admitted as observers and able to exercise the right to participate in the Compliance Committees with different rights under each legal framework. In the framework of the Aarhus Convention and the Alpine Convention, NGOs are also granted a limited right to set the NCP in motion.

In terms of the second category, assistance mechanisms seek to help States build capacity in order to guarantee compliance with treaty commitments. The goal of these mechanisms is to offer alternatives to the State in order to make up for the lack of preparation and appropriate resources by reinforcing specific competences and supporting Treaty Parties’ institutions. This is the case with financial and technical assistance. A growing trend in IEL consists of granting funding and financial assistance to level the playing field in terms of technical capacities to enable developing and less-developed countries to advance implementation. In turn, developed State and donors can contribute with financial

1

See Memorandum of Understanding between TRAFFIC and CITES, available at https://cites. org/sites/default/files/common/disc/sec/CITES-TRAFFIC.pdf accessed 1 April 2020.

assistance. Specific environmental funds are tailored and instituted under specific MEAs (like the Ramsar Convention) or international treaties with a bearing on environmental protection, such as the 1972 World Heritage Convention.

Under each MEA the obligations of Treaty Parties vary considerably, which is also reflected in the type of control they can exercise. Some treaties only provide a formal control of implementation, whereas in others (particularly the Montreal Protocol and the new generation of MEAs) compliance control is foreseen in a broader sense.

Different dispute settlement mechanisms are triggered in the event of non-compliance. Usually, formal dispute resolution mechanisms are used in serious events of non-compliance. There are also in-between solutions, as offered by some MEAs, i.e. partly formal solutions. Many MEAs provide for negotiation as an initial step or phase to deal with non-compliance. If the negotiations fail, other mechanisms become available. Some MEAs prefer more diplomatic/pragmatic approaches to formal and restrictive mechanisms to use in dealing with cases of non-compliance. This is the case with performance review information; financial tools or mechanisms; and, in general, non-compliance response measures. NCPs are analysed in the next section of this chapter. In addition to the formal and traditional international dispute settlement mechanisms, less formal mechanisms have also emerged in IEL incorporating elements of alternative dispute resolution and offering distinctive solutions to deal with environmental conflicts.

Overall, a move towards conflict prevention and non-compliance avoidance is observed, and various preventative techniques are deployed to either diffuse conflict surrounding compliance with IEL or to avert non-compliance, both of which are becoming more widespread in international environmental treaties.

  • [1] Malgosia Fitzmaurice, ‘International Protection of the Environment* (2001) 293 RCADI, pp. 9-488. N. Craik, ‘Recalcitrant Reality and Chosen Ideals: The Public Function of Dispute Settlement in International Environmental Law’ (1998) 10(2) Georgetown International Environmental Law Review, pp. 551-580. 2 Robin R. Churchill and Geir Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’ (2000) 94(4) The American Journal of International Law, pp. 623-659.
 
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