1. RESPONSES TO NON-COMPLIANCE

2. 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

3. Non-Compliance Procedures (NCPs)3

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. Informal Approaches to Non-Compliance10

11. 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

12. 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

13. 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

14. Dispute Settlement 14

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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