COMPLIANCE REGIMES UNDER INTERNATIONAL ENVIRONMENTAL LAW By ELIZABETH

COMPLIANCE REGIMES UNDER INTERNATIONAL ENVIRONMENTAL LAW By ELIZABETH MARUMA MREMA SENIOR LEGAL OFFICER UNEP-DELC For CLIMATE CHANGE SIDE EVENT Nairobi, 10 November 2006

Current measures used to induce compliance with environmental treaties I. Diplomatic and/or managerial measures Apply preventive and precautionary principle: ü Reporting requirements imposed on Parties ü Compliance monitoring mechanisms: • • On-site inspections (observations & inspections) Compliance Committees ü Positive Economic Incentives: • • • Establishment of funds to assist Parties Technical and scientific assistance/transfer of technology Transfer of information and know-how

Current measures used to induce compliance with environmental treaties ü Capacity Building including training programmes ü Issue linkage – clustering of related MEAs or MEAs with trade provisions or environment & development

Measures used to induce compliance with environmental treaties II. Coercive sanction-oriented Measures: Dispute settlement mechanisms - Adversarial, conflictdriven, confrontational or punitive ü ü Most MEAs contain one, but hardly ever used Deterrence oriented dispute settlement - Arbitration or Judicial settlement in cour ü Specific MEAs sanctions: - Withholding of treaty privileges - Economic and trade sanctions - Loss of privilege to trade etc.

Comparative Analysis: • Approaches taken by most environmental treaties to ensure their effective implementation: 1) Performance Review Information 2) Multilateral Non-compliance Procedures 3) Non-compliance Response Measures 4) Dispute Resolution Procedures

Comparative Analysis 1) Performance Review Information – Through Parties’ reports on their performance – Through third-party verification or monitoring 2) Non-compliance Procedures (Facilitative) – NCPs or Committees set up to examine and review Parties’ compliance status – Composition may either be country representative or individual capacity or individual – Working modalities- open or closed to public, ROP (voting) – “Trigger” mechanism, Source of information (another state, Committee itself …)

Comparative Analysis 3) Non-compliance Response Measures - Committee can take responses measures either in the form of recommendations to or resolutions by COP/MOP - NC response measures can be incentives/disincentives or “carrots and sticks” 4) Dispute Resolution Procedures (Adversarial) - Can arise between the Parties without engaging the COP or the Secretariat

Table 1: Overview of MEA Compliance Frameworks Convention National Performance Information Multilateral Non. Compliance Procedures Non. Compliance Response Measures Dispute Resolution Procedures Ramsar √ √ √ World Heritage √ √ CITES √ √ CMS √ √ CBD √ UNCCD √ ITPGRFA Basel √ √ √ Pending PIC √ √ Biosafety √ √ POPs √ Pending Vienna Ozone √ Montreal Protocol √ √ UNFCCC √ √ √

Table 2: Performance Review Information Convention Review Format Tem plate Ramsar √ World Heritage CITES Guidelin es √ √ National Performance Review Reporti ng Reporting 3 rd Party Monitoring √ √ √ CBD √ √ Pending √ ITPGRFA √ √ √ 3 rd Party Verification √ √ Basel 3 rd Party Monitori ng √ CMS UNCCD 3 rd Party Verificati on Non-Compliance Response Information √ √ Biosafety √ √ POPs √ √ Vienna √ √ Montreal Protocol √ √ PIC √

Table 3: Non-Compliance Response Procedures Convention Procedure Established Pending Trigger Body Any Member Secretariat Decision-Making Body Othe r √ COP Committee Ramsar √ √ World Heritage √ √ √ CITES √ √ √ CMS √ √ √ CBD UNCCD √ ITPGRFA √ Basel √ PIC Biosafety √ √ POPs √ √ Vienna Montreal Protocol √ √ √ UNFCCC √ √ √

Table 4: Non-Compliance Penalties Convention Warnin g Suspension of Privileges Trade Sanctions Liability Ramsar Exclusion of membership from World Heritage Committee World Heritage CITES √ Secretariat takes control of issuing permits Suspension of trade in CITES-listed species and imposition of conditions CMS CBD UNCCD ITPGRFA Basel √ Re-import illegal exports. √ Liability Protocol pending PIC Biosafety POPs Vienna Montreal Protocol UNFCCC √ Suspension of rights in institutional arrangements, financial mechanism and transfer of technology Suspension of trade, production and consumption rights

Table 5: Dispute Resolution Procedures Convention Negotiation Voluntary Compulsory Conciliation Voluntary Compulsory Binding Arbitration Voluntary Ramsar World Heritage CITES √ √ CMS √ √ CBD √ √ √ UNCCD √ √ √ ITPGRFA √ √ √ Basel √ PIC √ √ √ Biosafety Protocol √ √ √ POPs √ √ √ Vienna √ √ √ Montreal Protocol √ √ √ UNFCCC √ √ √ Compulsory

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