NON-COMPLIANCE PROCEDURES UNDER PROTOCOLS & CONVENTIONS

Majority of Multi-Lateral Environmental Agreements provide for a non-compliance mechanism, instead of a judicial or quasi-judicial process. Their objective is to bring about increased compliance among member states, instead of coercing them into following the mandate. This helps improve participation and ratification. The non-compliance procedures usually make recommendations and suggest course of actions that the non-compliant member state may adopt to ensure compliance. With the growing allegations of being “watchmen with dirty hands”, global states are increasingly opting for non-compliance and administrative solutions. Non-compliance procedures are sometimes applied against non-parties as well. Non-compliance procedures consist of a heterogenous mix of targeted solutions such as diplomatic pressure, providing expert assistance, withdrawing financial or technical assistance, issuing cautions and warnings or imposing trade restrictions.

Montreal Protocol:

The Montreal protocol of 1987 on Substances that Deplete the Ozone Layer was the first ever MEA to require for an established mechanism to identify and deal with non-compliant members. Since then, it has set-up a robust system of Non-compliance procedures, which included the “Ozone Secretariat” meeting twice each year to acknowledge reports on compliance status. If non-compliance is detected, the concerned party is “invited” to explain the reasons behind non-compliance. The emphasis largely remains on uncovering the reasons behind non-compliance, instead of naming and shaming. The Committee suggests various means through which the party can ensure compliance. In addition, the Committee has power to issue cautions, suspend specific rights and privileges such as finance and trade etc. The decisions of the Committee have ranged from expressing concern, encouraging where appropriate, requesting full-data reports to the Secretariat, providing specific plans for phase-out as well as policy changes and suitable methods of implementation, suggesting specific restrictions on exports. For instance, Russia received additional funding under World Bank Special Initiative to ensure phasing-out and same was achieved in 2000. The experience has been a positive one, largely.

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES):

“The Convention on International Trade in Endangered Species of Wild Fauna and Flora,” 1973, also provides for a non-compliance procedure which is quite unique and more robust comparatively. It is more aggressive, in contrast to the compliance procedures of the “management school” which advocate a softer approach. It also has an independent “data-monitoring and verification” centre – ‘World Conservation Monitoring Centre‘. It boasts of a massive record dating back to 1975, that can be used to cross-reference the quantity of exports and imports. These are then matched with originally agreed ‘export quota’. Any discrepancy is immediately reported to the CITES Secretariat. CITES also allows for NGO driven data inputs. For example, TRAFFIC – Trade Records Analysis of Fauna and Flora in Commerce collects information on illegal wildlife trade and shares it with Secretariat and national authorities. This massive date reporting and gathering provides a substantial edge to CITES in bringing about Compliance and also tracking non-compliance, which can be proved through robust data. However, this procedure has evolved over-time. The reports of non-compliance, major digressions, illegal trade is given to the Conference of Parties by the Secretariat. It uses the “carrot and sticks” approach in form of trade sanctions. Countries like United Arab Emirates, Bolivia, Italy, Greece and Thailand have faced sanctions in form of temporary but complete prohibition of trade in CITES-listed species. The procedure has been used against non-party states like Grenada, Equatorial Guinea and El Salvador as well. Following significant modifications in 1992 in the ‘Trade Review Process’ with respect to species not threatened with extinction but can become so if trade is not strictly regulated; many strict measures were implemented including complete ban provisions. Almost 17 countries have faced these sanctions. A 100% success rate is reported. However, it must be noted that the member countries face no major economic loss with the ban impositions and therefore not much persistence is faced against the non-compliance procedure.

International Whaling Commission:

The IWC was set-up way back in 1946 under the International Convention for the Regulation of Whaling. It developed a compliant assessment programme along with CITES. In 1971, an “International Observer Scheme” was introduced, apparently bolstered by fact that Russian scientists hid the real figure of 7207 caught whales and instead reported only 152 blue whales. Member countries have observers from other member states, who give respective infraction reports. Data is received from other organisations as well such as the Bureau on International Whaling Statistics. Such data is used to form the status quo on whale stocks which further provide the basis for developing regulations for controlling and preventing whaling. All the suggested changes are applied within ninety days, unless an objection is filed by a member country. This is a major challenge and shortcoming of the system.

Kyoto Protocol and Climate Change Compliance model:

The “United Nations Framework Convention on Climate Change” has seen one of the largest numbers of members, making it almost universal, before Canada and USA decided to exit it. Under Article 13 of UNFCCC provides for setting up of a dispute resolution mechanism on lines of the Ozone regime. Majority of rules were adopted in 1998 but the Kyoto Protocol’s compliance mechanism is more detailed and effective. Article 14 provides for establishing a Conciliation Commission that consists of equal number of members from both parties in dispute and a unanimously chosen chair. The award of the commission is in form of recommendations only and not binding. It is also possible for a group of regional nations, such as small island countries to launch a joint action demanding interpretation and implementation of specific obligations under the UNFCCC regime. With increasing threat of climate change, with some countries losing their territories as well, it is suggested that UNFCCC settlement provisions also include matters concerning loss and damage. The Kyoto Protocol compliance regime was set-up in 2005 only, specifically to facilitate support the carbon market initiative, bringing more transparency among the member states with respect to accounting of carbon emissions and trade-offs. The Compliance Committee is also based on the principle of Common but differentiated responsibilities. The EB or “Enforcement Branch” identifies and reports on non-compliance by Annex I members. The “Facilitative Branch” reviews compliance by Non-Annex I countries and assists the members with bringing about compliance.

The EB is empowered to impose ‘non-punitive’ measures. It can also suspend the eligibility of the defaulting member state. In case of non-compliance with respect to emission targets, a substantial margin can be deducted from the party’s “assigned amount”. The Compliance procedure can be initiated in three ways, namely, “self-trigger”, “party-to-party trigger”, or a “public-trigger”. Even authorised and well-established intergovernmental and non-governmental organizations can submit information and facts under the “public-trigger”. In 2008, the Expert Review team, after conducting a preliminary review, found Greece as a major non-compliant party. Following this, EB recommended development of a plan by Greece to re-install compliance within three-months and took away Greece’s eligibility to participate in the three major Kyoto Protocol mechanisms – Emission trading, Joint Implementation, and Clean Development Mechanism. Greece submitted the compliance plan and its eligibility were reinstated by EB.

Miscellaneous Conventions and Compliance mechanisms:

International Convention for the Conservation of Atlantic Tunas was established in 1966. It is responsible for bringing sustainable fisheries management in the global trade and fishing regime. Although it has no trade related restrictions in its mandate, yet it has introduced the same through its Compliance model. This Compliance model is effective on both party-members as well as non-party members. In recent past, ICCAT has imposed ban on imports of such as Atlantic swordfish and blue-fin tuna from Panama, Belize and Honduras who are actually non-party members. ICCAT has also issued a number of warnings to other countries. Following this, Panama implemented the required regulations and also became a party. Inspite of having a fairly effective non-compliance control model, the freedom and cloak of the grand seas leads to massive “flag of convenience” problem.

Convention for the Conservation of Antarctic Marine Living Resources was established under the Antarctic Treaty System was enforced in 1982 with the global objective of preserving marine life and maintaining “environmental integrity in and around the Antarctica. Its main focus has been to preserve the population of Krill species, on which major populations of marine life is dependent for food. Similar to ICCAT, CCAMLR has no trade restrictions but stipulates a strong prohibition on non-party vessels that disallows tran-shipment or landing of vessels in CCAMLR-protected areas. Each member country has designated inspectors that ensure Compliance with the conservation measures. The reports of inspection and resultant sanctions are sent to the CCAMLR Commission.

Convention on Long-Range Transboundary Air Pollution was enforced in 1983 under the joint-partnership of European Monitoring and Evaluation Programme (EMEP) and the United Nations Economic Commission for Europe (UNECE). Its primary objective is to reduce and prevent air pollution including “long-range trans-boundary air pollution”. The implementation-cum-compliance committee was set-up in 1997. The Compliance-model is based on the Montreal Protocol itself with a system of reporting and a robust, independent analytical body EMEP. Interestingly, the first cases of non-compliance – Norway and Slovenia were self-reported with requests on how to address the problem. These were intentionally reported to further advance and improve the non-compliance system.

The Aarhus Convention was signed in 1998& is ratified by the European Union and more than forty-five European as well as Central Asian States. It aims to establish a robust relationship between Environmental Rights and Human Rights. It is founded on the principle of engaging citizens for achieving sustainable development. It facilitates public participation and access to information in several ways. Its most significant provision allows entities like groups, organizations and associations which are given recognition by any member state to submit requests for “internal re-evaluation” of any act or omission that is against the environmental regulations or law. This review procedure is before a court of law, or any independent and impartial body under law. The substantive as well as procedural legality of any act, omission or decision can be challenged. Thus, any citizen can keep a check on the Compliance status quo of a member state. Such allegation can be submitted to a committee of international legal experts, called the Aarhus Convention Compliance Committee. It cannot issue binding decisions but makes recommendations, submitted at the Parties Meetings.

Conclusion:

Non-compliance procedures and Conventions like AARHUS play an extremely significant role in bringing about good practices for ensuring environment human-rights. Non-compliance procedures allow for exercise of transboundary environmental governance whereas conventions such as AARHUS facilitate public participation in environmental decision making. Both of these procedures significantly help in making informed policies towards environmental protection, thus ensuring access to environmental justice and rights.

Part-I Of This Series Focused on Emerging Alternate Forums For Environmental Adjudication.

Author: Arunika Mishra, Research Scholar, Panjab University, Chandiga