Non-compliance procedures (NCPs)

NCPs have become the most relied-upon form of monitoring the fulfilment of environmental obligations under MEAs. This implies shifting the focus away from the traditional ex-post intervention based on attaching negative consequences to the infringement of an environmental norm. Overall, NCPs contribute to the implementation of environmental treaties through the provision of financial or technical assistance and the imposition of sanctions aimed at guaranteeing an acceptable level of compliance with the MEAs. Several environmental treaties establish a body tasked with ensuring compliance and that similar mechanisms are instituted under regimes created by environmental treaties.[1]

Usually, non-compliance procedures are set up by legally binding IEL norms: either treaty provisions or legally binding decisions passed by main treaty bodies.

On some occasions, soft-law norms also come under scrutiny under NCPs. The mushrooming of NCPs under MEAS reveals different types of mechanisms. Formal NCPs can take different shapes in order to deal with non-compliance problems under the respective treaties, though they operate in a similar fashion in practice.[2]

Some MEAs may refer to non-compliance amounting to the breach and non-application of treaty provisions. In assessing whether international actors have or have not fulfilled their international environmental obligations, one must look at the wording of the treaty but also at its object and purpose. However, the NCPs remit do not cover failure to take effective measures to achieve treaty objectives, i.e. the adoption of measures would suffice. This narrow concept of non-compliance is questionable as it does not reflect the effectiveness of the regime in question.

With regard to the nature of the NCPs, they function more as an alternative dispute resolution method or dispute avoidance processes. Literature in the field has underlined the idea that the ultimate purpose of these procedures is to ensure a satisfactory level of compliance with treaty obligations. NCPs seem to operate more on a consensual basis than other compliance mechanisms. The underlying technique in all these mechanisms is international conciliation, guided by the principles of global environmental responsibility, as laid down in different international legal instruments.11

Compliance procedures vary from treaty to treaty, but they share some common features. First, they are usually based on multilateral treaties. Second, in principle, there is no need for the respondent State’s consent before the process can be initiated. Third, there is no requirement for a specific standing before making a complaint, and they base their effectiveness on the principle of inter-state cooperation.

Considered a legal innovation when its NCP was introduced under the Montreal Protocol (MP), NCPs have been widely disseminated and incorporated in other MEAs. In this regard, the MP constitutes an authentic game-changer

and a ‘role model’ for other MEAs which have adopted similar systems.[3] Across MEAs, some cases are cited as ‘success stories’ to analyse compliance with IEL. In line with the features already mentioned, the MP comprises a non-confrontational procedure aimed at preventing environmental damage. Indeed, the system instituted therein seeks to induce compliance with IEL norms by not singling out the concerned State as a culprit. Rather the opposite, the State in question may provide explanations about the lack of compliance to reduce it to the minimum or to bring its behaviour in line with treaty commitments.

The underlying goal is to prevent or mitigate environmental damage that might arise because of non-compliance. Ultimately, NCPs rely on the international law principle of good faith. Whereas the utility/relevance of NCPs on paper lies on legal principles, in practice their effectiveness seems to depend upon two main factors: the number of contracting parties which have accepted the mechanism (not opting out) and the array of responses available to the parties in the event of non-compliance.

NCPs are rooted (explicitly or implicitly) in treaty provisions, which are in most cases developed by decisions adopted by treaty bodies, such as the Conference of the Parties or the Meetings of the Parties (as in the case of Aarhus). In terms of the binding nature of NCPs, some of them have been established without any specific treaty provision, as in the cases of CITES or the Basel Convention, but have then been regulated through secondary law, i.e. decisions adopted by the treaty bodies. The type of norms regulating a specific NCP mechanisms has an impact on its binding character and, therefore, the compelling effect of the decisions adopted as a consequence. The binding character may reside in the wording of the treaty expressly providing for it or in the consensus element (i.e. if States decide to amend the treaty to confer that character). Sometimes, treaty provisions opt towards attributing the mechanisms with a merely consultative and optional nature, as in the case of the Aarhus Committee. More controversial are cases in which the treaties remain silent, in which case the powers attributed to the treaty bodies come into play as if they were allowed to adopt formally binding non-compliance decisions. Clearly, this does not mean that non-binding compliance decisions adopted by NCPs carry no normative power as some of them are considered authoritative and must be followed by the States.

Somehow, the force of the decision depends upon State consent expressed in one way or the other to support the work of the Conference of the Parties (COP) or the Conference of the Parties serving as the meeting of the Parties (CMP).[4]

The membership of NCP bodies becomes relevant for the assessment of the effectiveness and neutrality of the various mechanisms, particularly in terms of what concerns the composition, the way in which the members are appointed and the nature of their function (if they represent a State party or are considered ‘independent experts’). International practice shows that NC organs are often composed by State representatives selected by treaty bodies based on different criteria, such as equal geographical representation, as in the case of the Espoo Convention and the LRTAP Convention. Independent experts are appointed under the Aarhus Convention who serve in a personal capacity, pro bono, and are experts in the field. A mixed system is observed in other environmental treaties, like the Compliance Committee under the Kyoto Protocol, which consists of 20 experts who act in an independent capacity based on technical expertise and geographical representation, holding plenary sessions as a ‘facilitative branch’ or as ‘an enforcement branch’.

With regard to who sets the NCP process in motion, the options are selftriggering, other States, treaty bodies or authorised third-parties. Selftriggering has been hailed because of the non-confrontational nature of NCPs; however, it only covers certain treaty provisions concerning financial and/or technical assistance rather than provisions dealing with substantive obligations. The specific treaty may provide for the possibility that another State party can rely on the mechanism without invoking direct harm when non-compliance affects global commons and the general interest, such as with regard to the protection of the ozone layer, climate conditions or biodiversity when endangered species are affected. Whenever non-compliance does not affects general State interest or the global common, only those States directly affected are entitled to set the mechanisms in motion.2’’

A more centralised system comes into play when the treaty monitoring body is tasked with setting the NCP off, calling on States to fulfil the substantive or procedural obligations assumed under the treaty. This procedure presents itself as more advantageous than the others since it is managed by a neutral body which has an overview of the procedure and can act as an intermediary between the different interests at stake, also incorporating the view of third parties, such as sectors of the civil society.

Precisely, these third parties which can be ‘the public’ or representatives of the civil society may be authorised by the treaty to forward non-compliance queries to the treaty body. A clear example of this is the Aarhus Convention, which represents a singular case as it opened the possibility of referring communications to the Compliance Committee. As the extensive practice of the ACCC shows, many cases are referred by non-governmental organisations, which have a general interest fostering environmental democracy and transparency. What it is decisive is the type of mechanism - more technical or politically oriented - an aspect which has been extensively addressed in the literature to underline the need for neutrality and to avoid distortions caused by the political issues.[5]

Throughout the non-compliance process, the main question concerns the effectiveness of the mechanisms. The key aspect in this regard is the type of measures taken by NCPs. Although the binding character of the decisions adopted remained disputed, the plethora of decisions can range from facilita-tive measures, such as determining the need for financial assistance (a milder approach to the issue), to more stringent measures, such as the imposition of sanctions which denote a more formal stance to non-compliance. For instance, the International Whaling Commission (IWC) represents an interesting example of a progressive use of NCPs tools. IWC Infractions Sub-Committee Member States are bound by Art. IX (1) of the IWC Convention to ensure compliance.

In a taxonomy of the NCPs, various systems can be identified. In Table 6.1, various NCP mechanisms established under MEAs are compared following the most relevant categories for the analysis.

  • [1] See, for instance, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989, art 19. 2 UNEP Division of Environmental Law and Conventions, Compliance Mechanism under Selected Multilateral Environmental Agreements (UNEP 2007), available at http://hdl.handle. net/20.500.11822/7507 accessed 1 March 2020.
  • [2] Thomas Gehring» ‘International Environmental Regimes: Dynamic Sectoral Legal Systems’, 1 YBIEL, p. 35. 2 Simon Marsden, ‘Non-Compliance Procedures’ (2017) 28 Yearbook of International Environmental Lan^pp. 111-115, available at https://doi.org/10.1093/yiel/yvy025 accessed 1 March 2020. 3 David G. Victor, Karl Raustiala, and Eugene Skolnikoff (eds), Implementation and Effectiveness of International Environmental Commitments (MIT Press 1998), pp. 6-8. 4 Patricia Birnie, Alan Boyle, and Catherine Redgwell, International Law and the Environment (3rd edn Oxford University Press 2009), p. 243. 5 Tullio Treves, Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (TMC Asser Press 2009). 6 Boyle, p. 128. 7 See, for instance, compliance procedures established under the 1992 OSPAR Convention, Article 23; 2000 Protocol on Biosafety, Article 34; 2001 POPS Convention, Article 10; 2003 Protocol on Pollutant Release and Transfer Registers, Article 22. 8 Birnie, Boyle, and Redgwell (n 9) at 246. 9 UNEP, Key Achievements of the Montreal Protocol to Date (1987-2012), available at https:// ozone.unep.org/sites/default/files/Key_achievements_of_the_Montreal_Protocol_2012.pdf accessed 1 March 2020.
  • [3] Martti Koskenniemi, ‘Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol’ (1992) 3(1) Yearbook of International Environmental Law, pp. 123-162, available at https://doi.Org/10.1093/yiel/3.l.123 accessed 1 March 2020. 2 Pierre-Marie Dupuy and Jorge E. Vihuales, International Environmental Law (Cambridge University Press 2015), pp. 284-285. 3 Ibid. 4 The principle is of customary nature, being set out in Article 26 of the Vienna Convention on the Law of the Treaties in terms of pacta sunt servanda (‘agreements must be kept’). 5 A. Andruseveich, T. Alge, and C. Konrad (eds), Case Law of the Aarhus Convention Compliance Committee (2004-2014), available at https://www.unece.org/fileadmin/DAM/env/pp/com-pliance/CC_Publication/ACCC_Case_Law_3rd_edition_eng.pdf accessed 1 March 2020. 6 See the discussion in Dupuy and Vinuales (n 16) at 287.
  • [4] Jutta Brunee, ‘COPing with Consent: Law-making under Multilateral Environmental Agreements’ (2002) 15(1) Leiden Journal of International Lanpp. 1-52. 2 Monreal NCP; Basel; Ramsar; CITES; Kyoto; Cartagena; Aarhus. 3 Malgosia Fitzmaurice, ‘Non-Compliance Procedures and the Law of Treaties’ (2009) in Tullio Treves et al. (eds), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (Springer 2009), pp. 453-481. 4 Dupuy and Vinuales (n 16) at 289. 5 Basel Convention, para. 9 (b); Cartagena Protocol, para. IV. 1(b).
  • [5] Gunther Handl, ‘Compliance Control Mechanisms and International Environmental Obligations’ (1997) 5 Tulane Journal of International and Comparative Lawy pp. 29-49. 2 Cesare P.R. Romano, ‘International Dispute Settlement’, in Daniel Bodansky, Jutta Brunnee, and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2008). 3 Joost Pauwelyn, 6. ‘Judicial Mechanisms: Is There a Need for a World Environment Court?’, in W. Bradnee Chambers and Jessica F. Green (eds), Reforming International Environmental Governance: From Institutional Limits to Innovative Reforms (UN University 2005). See, also, Joost Pauwelyn and Rebecca J Hamilton, ‘Exit from International Tribunals’ (2018) 9(4) Journal of International Dispute Settlement, December, pp. 679-690.
 
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