RESPONSES TO NON-COMPLIANCE

Responding to Non-compliance Sovereign States enter into MEAs on a voluntary basis and may withdraw, under certain conditions. States are reluctant to subject themselves to potential sanctions In order to do so, need to be assured that other states will also have to comply or suffer similar sanctions. Caveat: common-but-differentiated responsibilities Query: What happens when a State fails to comply with its obligations under an MEA (e.g. failing to fulfil reporting obligations)? Answer: Most MEAs utilise a formal internal compliance control procedure or non-compliance procedure (NCP), as well as some informal mechanisms. 2

Non-Compliance Procedures (NCPs) 3

What is an NCP? A procedure that assists Parties with compliance problems and addresses instances of non-compliance. Recognises that non-compliance may result from institutional or resource incapacity, rather than flagrant disregard for MEA rules. Thus, NCPs frequently take the form of non-coercive means to help bring Parties into compliance. Sometimes an NCP takes a two-fold form: non-coercive where non-compliance due to lack of capacity; coercive where due to lack of will 4

What Form do NCPs Take? Establishment of compliance or implementation committees can be by: including them in an MEA, or a decision of the COP. Constitution of the NCP Members usually serve in individual capacity, not representing a specific country. But selection of NCP members usually considers geographic distribution. Triggering the NCP COP can refer the matter of a Party’s alleged non-compliance to the NCP Other states can (but rarely) do refer Secretariats often refer Self-referral is usually an option Referral by citizens or NGOs is uncertain: some MEAs allow (e.g. Aarhus), while others are not certain Committee reviews and assesses non-compliance Some NCPs can make findings and decide on sanctions Most NCPs make a recommendation to the COP for the COP to make the final decision 5

Non-Compliance Response Measures If non-compliance is identified, it requires a response at the multilateral level Response is tailored to circumstances of the case Will depend on the underlying reason for non-compliance lack of financial or human capacity would suggest facilitative response lack of political will or negligence would suggest a more coercive response Response measures can include incentives, assistance, and/or sanctions. 6

Facilitative NCPs Useful when non-compliance is due to lack of capacity May be subject to conditions such as the adoption of a national implementation plan or a national action plan. Enhanced international cooperation with non-compliant Party Technical and financial assistance (e.g. training and workshops); Technology transfer and exchange of information mechanisms to address issues relating to lack of materials and know-how; and Financial provisions to address resource constraints (e.g. from Global Environment Facility). 7

Coercive NCPs Useful when non-compliance is due to lack of will. Additional, customised, and potentially stringent performance review information obligations which is subject to verification Warnings and penalties. Penalties may include: Publishing information on non-compliance (naming and shaming) Suspension of MEA rights Trade sanctions 8

Benefits of NCPs Can provide a vehicle for identifying non-compliance at an early stage & to form appropriate responses Is typically non-adversarial in nature and thus maintains relationship amongst Parties Is aimed at assisting defaulting Parties Adopts a collective approach in doing this Can clarify the content in terms of application of provisions, thus avoiding disputes 9

Informal Approaches to Non-Compliance 10

Montreux Record Ramsar Convention on Wetlands provides for a mechanism by which Parties can voluntarily list Ramsar sites that are facing particular challenges – known as the Montreux Record. Can help Parties to generate public awareness, mobilise financial resources, and build political consensus to undertake the necessary measures. 11

Review of Effectiveness of MEAs MEA may require that the COP, Secretariat, or a panel of experts verifies or monitors performance of the MEA Is the MEA working in the way it was envisioned? Are there systemic challenges? What might be options for addressing these challenges? e.g. Article 6 of the Montreal Protocol requires assessment of control measures by a panel of experts This enables the COP to examine specific difficulties of compliance and consider measures to improve compliance. A report by the US General Accounting Office, International Environment: International Agreements are Not Well Monitored (1992) assessed adherence to the reporting requirements of 6 MEAs. 12

Compliance Mechanisms after MEA Entered into Force NCPs may be introduced or enhanced after an MEA has entered into force. This can be done in one of two ways: MEA can direct and empower COP to develop NCP through a general mandate or through specific parameters for the NCP If MEA is silent, COP can take decision to develop NCP. 13

Dispute Settlement 14

The Need for Dispute Settlement UN Charter places an obligation on States to cooperate and resolve disputes peacefully Most MEAs provide for the possibility of disputes arising and include provision for dispute settlement Some include complex mechanisms with formalised procedures Generally 4 types: Negotiation Conciliation and Mediation Arbitration International Court of Justice (if jurisdiction accepted) 15

Dispute Settlement Mechanisms Negotiation: a good faith effort to reach agreement based on a compromise of positions. States must submit to process. Conciliation & Mediation: an option if negotiations fail Requested by one of the parties Involves participation of a third party (although not necessarily a Party) to assist in finding a mutually acceptable resolution Arbitration: if above processes fail Hearing in front of before an arbitration panel Decision may be binding or non-binding, depending on initial agreement International Court of Justice: last resort – but only if Parties to the MEA have accepted its jurisdiction 16

Dispute Avoidance In practice, States are reluctance to submit to formal dispute settlement: Rules in treaties are not well developed, leading to uncertainty Procedures can be prolonged and expensive. Jurisdiction and/or formal authority of dispute settlement mechanism may be inadequate to ensure a meaningful remedy Most mechanisms are not compulsory – thus Parties need to consent to its use Thus, there frequently is a focus on dispute avoidance 17

Dispute Avoidance Mechanisms (1) Exchange of information: provides opportunity to learn about non-compliance and environmental threats at an early stage; builds confidence among States Notification: prior notification regarding activities with potentially adverse transboundary effects may prevent and minimise damage Consultations: States planning to conduct activities that may harm the environment of another State may be required to enter into good faith consultations in order to minimise environmental and/or social impacts Principle of Good Neighbourliness 18

Dispute Avoidance Mechanisms (2) Prior Informed Consent (PIC): States should receive the PIC of another State before carrying out environmentally harmful activities in that State (e.g. Basel and Rotterdam Conventions) Transboundary Environmental Impact Assessment: States should conduct EIA before conducting activities that carry the risk of impacting on the environment of another State or on States sharing a resource (see Espoo EIA Convention) Joint Management Regimes: States can cooperate in developing regimes for managing shared transboundary resources 19

Other Forums for Environmental Disputes A number of trade and environment disputes have been heard by the WTO’s Dispute Settlement Body (DSB) National measures to protect the environment have been challenged as violating international trade law. In most cases, DSB ruled that these measures were “trade restrictive”. Other potential forums International Court of Justice Regional trade bodies (e.g. North American Free Trade Agreement Arbitration Tribunal) Human Rights bodies (e.g. Inter-American Commission on Human Rights) 20