2.1 Introduction

Populations around the world today are physically and economically interdependent. They share a global economy, they share supply chains, they share the global environment, they share the earth’s resources, they share the air that we breathe, they share contagious diseases and they share a reliance on nature’s well-being. In this world of shared interests, conceiving of implementation and compliance primarily through a dispute settlement lens has become more outdated than ever before. Dispute settlement machinery deals with often bilateral individual disputes, and it deals with them once they have crystallised, and often retrospectively. Even in multilateral settings, it is likely to be focussed on a relatively narrow range of issues identified by the litigants in light of their immediate and longer-term strategic interests. In contrast, today’s international problems increasingly require addressing ex ante, at times before major concerns become apparent. They call for dynamic processes that will review and re-review compliance. They correspond to a broad agenda calling for contemporaneous action by multiple Parties across multiple interrelated policy spheres. They require significant information flow, including scientific, technical and economic and social information.

Facilitative implementation and compliance processes like those found mainly in multilateral environmental agreements (MEAs) have the potential to help address this set of needs if we bring them into wider use across international law, and this chapter advocates their more widespread adoption in treaty regimes across diverse fields of international law. Provision for these processes should specifically be included in the expected treaty on pandemic preparedness and response, to which this chapter devotes its main attention, and the intended international legally binding instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ),Footnote ¹ as well as the plastics pollution treaty presently under negotiation.Footnote ²

Frequently contrasted with formal international dispute settlement, such non-compliance mechanisms (NCMs) are generally characterised as providing a softer option. Indeed, a ‘new generation’Footnote ³ of MEAs, including the Paris Agreement,Footnote ⁴ the Rotterdam Convention on the Prior Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade as it now operatesFootnote ⁵ and the UNECE Convention on the Protection and Use of Transboundary Watercourses and International LakesFootnote ⁶ now leave aside the enforcement elements seen in the non-compliance arrangements under earlier regimes like the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol),Footnote ⁷ the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),Footnote ⁸ the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention)Footnote ⁹ and the Kyoto Protocol to the United Nations Framework Convention on Climate Change.Footnote ¹⁰ These ‘new generation’ regimes emphasise the practical facilitation of compliance, increasingly omitting sanctions for non-compliance and taking an explicitly non-confrontational approach.Footnote ¹¹ The focus and the terminology being employed have both shifted towards implementation as well as compliance. We can arguably now talk of ‘implementation and compliance mechanisms’ rather than non-compliance mechanisms, but for simplicity the more general term ‘non-compliance mechanisms’ will continue to be used in this chapter.

Pursuing the argument that including facilitative NCMs in international pandemic law and beyond could help meet the needs of an increasingly interdependent world, this chapter is divided into four parts. The first part introduces the chapter. The second part considers the value that an NCM could add to the international law on pandemic preparedness and response. As negotiations for a new pandemic treaty progress, there are important opportunities to adopt machinery that will help ensure its better implementation. The third part investigates whether aspects of the facilitative compliance and accountability machinery in the Paris Agreement – as perhaps the most recent, sophisticated and universal of the NCMs in the various MEAs – could potentially be transferable to international pandemic law. While we have still to see the Paris Agreement’s compliance and accountability machinery in operation over time in order to evaluate its strengths and weaknesses, the Paris model provides much food for thought. It is not too early to suggest that reflections on the Paris model can helpfully inform negotiations on compliance in new instruments across other fields of international law.

The fourth part underpins these practical discussions with an investigation of developments in the theoretical basis for NCMs, explaining that, in today’s interdependent world, managerial and rationalist theories of compliance converge to support the adoption of facilitative implementation and compliance machinery. At the same time, facilitative implementation and compliance mechanisms will work in complement with the occasional exercise of international courts’ and tribunals’ jurisdiction and formal dispute settlement processes more generally. The chapter concludes with comments on associated questions of State responsibility as well as an update on relevant negotiations.

2.2 An NCM for International Pandemic Law?

International law on pandemic preparedness and response has not had a strong focus on the development of non-compliance machinery. Yet compliance with the central legal instrument, the International Health Regulations (IHR), is critical. The IHR concern matters including sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease. They were adopted by the World Health Assembly in 1969 under Article 21 of the WHO’s Constitution.Footnote ¹² They are binding on WHO member States by virtue of Article 22 of the Constitution and were reviewed in 1983 following the eradication of smallpox and in 2005 after the defeat of the novel coronavirus SARS-CoV (Severe Acute Respiratory Syndrome).

The IHR 2005 revolve around a set of concrete requirements relating respectively to capacityFootnote ¹³ and to notification and information sharing.Footnote ¹⁴ As to capacity, the key provisions in Article 5 and Article 13 require States to develop, strengthen and maintain respectively the surveillance capacity to detect, assess, notify and report events; and the public health response capacity to respond promptly and effectively to public health risks and public health emergencies of international concern. The WHO is to assist on request.Footnote ¹⁵ Eight inferred core capacities are in the areas of national legislation, policy and financing; coordination and national focal point communications; surveillance; response; preparedness; risk communication; human resources and laboratory services.Footnote ¹⁶ As to notification, the IHR call for notification by a WHO member State to the WHO within twenty-four hours of assessment of public health information of any event which may constitute a public health emergency in its territory, as well as the response and support received.Footnote ¹⁷ Further provisions of the Regulations deal with matters including the declaration of public health emergencies of international concern, the WHO adoption of temporary and standing recommendations, measures to be taken at points of entry, travel and transport-related public health measures, travel documentation, charges, additional health measures, collaboration and assistance, and further matters relating to administration and review of the regulations.

Public debate on the IHR’s effectiveness has tended to focus on the emergency provisions, neglecting the underpinning significance of the capacity provisions and mechanisms to help ensure implementation.Footnote ¹⁸ The Review Committee on the Functioning of the International Health Regulations (2005) during the COVID-19 Response observed that the IHR 2005 ‘do not contain a clear mechanism to monitor compliance with the many obligations of WHO and States Parties’ other than a ‘static self-assessment report on core capacities’ and a WHO secretariat annual implementation report to the World Health Assembly.Footnote ¹⁹ Under Article 54(c) of the IHR 2005, States Party and the Director-General are to report to the Health Assembly on the implementation of these Regulations as decided by the Health Assembly.Footnote ²⁰ Historically, Article 54 reports were required to align with the indicators, scoring system and topics found in the WHO’s 2010 IHR Core Capacity Monitoring Framework. However, since 2018 a self-scoring quantitative questionnaire has been used, known as the State Parties Self-Assessment Annual Reporting (SPAR) tool.Footnote ²¹ The number of States submitting annual reports has increased.Footnote ²² However, it has been argued that under the new model, the required content does not contribute effectively to identification of what is expected of States in terms of core capacities.Footnote ²³ Furthermore, although the scores submitted by States in their reports may be made public, there is no subsequent critical review process.Footnote ²⁴ Neither is there a clear adverse consequence in case of non-submission, late submission or incomplete reporting.Footnote ²⁵ The processes used are evidently insufficiently focussed: ‘[t]hese reports, and the tools used to produce them, do not assess how well individual countries have performed on specific IHR functions and obligations.’Footnote ²⁶

The annual reporting process is the main feature of the WHO’s 2016 IHR Monitoring and Evaluation Framework, also embracing three processes introduced in response to a call to move away from the self-evaluations on which Article 54 reports rely. These three processes are: voluntary joint external evaluations (JEEs); after-action reviews; and simulation exercises,Footnote ²⁷ all of which remain voluntary. Figures published in 2021 suggest that 112 on-site JEE missions had taken place, 64 reviews following public health action under the IHR, and 128 simulation exercises.Footnote ²⁸ Refined in 2018,Footnote ²⁹ the JEE process involves a State’s preliminary self-assessment with subsequent on-site visits and reviews by a combined group of external and local experts.Footnote ³⁰ Reliance within the JEE process on States’ self-assessment is considered a weakness of the JEE process.Footnote ³¹ States’ self-assessments are said to be an estimated 20 per cent higher than estimates of their capacity in JEE reports.Footnote ³² States’ agreement is required for the experts’ selection and methodology, and any publication of a JEE report.Footnote ³³

COVID-19 revealed critical gaps in pandemic preparedness, including gaps in governance, subnational gaps and capacity, essential public health functions, such as diagnosis/testing, contact tracing and treatment capacities.Footnote ³⁴ According to the data reported to the WHO by State Parties, as at 2021 the vast majority of countries still had low or moderate levels of national preparedness.Footnote ³⁵ The Review Committee also found that weak capacities were reported for emergency preparedness and response at points of entry.Footnote ³⁶ Confounding matters, IHR core capacities alone did not prove to be a good predictor of pandemic response in respect of COVID-19.Footnote ³⁷ COVID-19’s magnitude and challenges overwhelmed many countries, including countries with high assessment scores.Footnote ³⁸ There was ‘a significant disconnect between the actual and perceived levels of preparedness’.Footnote ³⁹ Compliance problems had, though, previously been fully apparent. Too many countries had missed the five-year deadline for development of the requisite capacities, even with second extensions.Footnote ⁴⁰ Reviews of the functioning of the IHR following past disease outbreaks including H1N1 and Ebola had provided relevant readings on the state of under-preparedness and the under-implementation of the IHR.Footnote ⁴¹ And, to be fair, two thirds of States’ own annual reports to the WHO indicated only a poor or modest preparedness, at a level of 1 to 3 out of 5.Footnote ⁴² Even with progress in the evaluation of core capacities from 2016 to 2018,Footnote ⁴³ the compliance problem had attracted serious concern to the point where the WHO had identified protection from health emergencies as one of three strategic priority areas for the World Health Organization in the 2019–2023 period.Footnote ⁴⁴

Strengthening the effectiveness and implementation of, and compliance with, the IHR 2005 is now a clear area of priority for all member States.Footnote ⁴⁵ Improved compliance with the international law on pandemic preparedness and response is central to preventing fresh iterations of the experience with COVID-19, or worse, in the case of future emerging pandemics, and clearly requires greater attention. Initially a 2021 World Health Assembly mandate tasked the WHO Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (WGPR) to assess the benefits of developing such a convention, agreement or instrument on pandemic preparedness and response.Footnote ⁴⁶ On 1 December 2021 the WHA established a new Intergovernmental Negotiating Body to work on the intended instrument, with the WHO secretariat tasked in March 2022 to prepare a draft text, in an open and inclusive manner. In parallel the WGPR continued to consider improvements to the IHR 2005. In July 2022 governments decided that the new instrument would be legally binding and would be adopted under Article 19 of the WHO Constitution. It has remained unclear whether improved compliance and implementation procedures will be elaborated in the context of the expected new instrument.Footnote ⁴⁷ However, during the period this book was being produced, governments began to turn their attention more closely to this question.

The reports and reviews on which the intergovernmental negotiations and WGPR are drawing have addressed implementation and compliance in broad terms only. These reports and reviews have included reports of the Independent Global Preparedness Monitoring Board,Footnote ⁴⁸ the WHO’s Review Committee on the functioning of the IHR 2005 during the COVID-19 Response,Footnote ⁴⁹ the Independent Panel for Pandemic Preparedness and Response (IPPR)Footnote ⁵⁰ and the WHO’s Independent Oversight Advisory Committee.Footnote ⁵¹

2.3 The Paris Agreement’s Compliance and Accountability Machinery as a Model for International Pandemic Law

The Paris Agreement is of a particular character in that participating States’ emissions reductions targets or Nationally Determined Contributions (NDCs) are self-specified. There is no obligation in the Paris Agreement compelling their realisation (although NDCs are subject to the Agreement’s requirements that each Party’s successive nationally determined contribution will represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition).Footnote ⁸² Accordingly the Paris Agreement’s accountability and compliance arrangements focus on a range of other administrative and procedural obligations and processes intended to help bring about the Agreement’s effective implementation.

Compliance with the Paris Agreement is encouraged through several overlapping mechanisms including: accountability in relation to NDCs, an enhanced transparency framework and the work of the Implementation and Compliance Committee. In addition, there is the Global Stocktake, and additionally the possibility of dispute settlement.Footnote ⁸³ Communication, reporting and accounting requirements for NDCs are central.Footnote ⁸⁴

The Enhanced Transparency Framework (ETF) is established under Article 13. The ETF involves compulsory submission of national greenhouse gas inventory reports (NIRs) and information necessary to track progress in implementing and achieving a Party’s NDC.Footnote ⁸⁵ The transparency framework is to be implemented in a facilitative, non-intrusive, non-punitive manner, respectful of national sovereignty, avoiding placing an undue burden on the Parties.Footnote ⁸⁶ Biennial transparency reports (BTRs) are expected, and NIRs may also be provided as stand-alone documents for developed countries reporting annually. For developed country Parties, the BTR must also contain information on finance provided and mobilised, as well as on technology transfer and capacity building for developing country Parties. Each report goes through an independent Technical Expert Review (TER). The Technical Expert teams review the consistency of the information submitted with requirements in the ETF’s Modalities, Procedures and Guidelines (Article 13 MPG).Footnote ⁸⁷ The review also requires consideration of the Party’s implementation and achievement of its NDC, consideration of the Party’s support provided, identifying areas of improvement for the Party relating to the implementation of Article 13, and, for those developing country Parties that need it in the light of their capacities, assistance in identifying capacity-building needs.Footnote ⁸⁸ A report is prepared containing recommendations with respect to these mandatory reporting requirements. The TER is followed by a Facilitated Multilateral Consideration of Progress (FMCP).Footnote ⁸⁹ This is a plenary dialogue which involves a biennial question-and-answer session and then a working group session.Footnote ⁹⁰

The Paris Agreement’s Implementation and Compliance Committee was established under Article 15(1) as part of a ‘mechanism to facilitate implementation of and promote compliance with the agreement’ and the Conference of the Parties to the UN Framework Convention on Climate Change (UNFCCC) serving as the Meeting of the Parties to the Paris Agreement (CMA) adopted the Committee’s rules of procedure in 2021Footnote ⁹¹ and 2022.Footnote ⁹² Article 15(2) specifies that the mechanism ‘shall consist of a committee that shall be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive’ and that the Committee is to pay particular attention to the Parties’ respective national capabilities and circumstances. The Committee is a standing body with geographically and politically representative composition. Its mandate is discrete from that of the other bodies and elements of the Paris Agreement’s overall accountability and compliance scheme previously discussed.Footnote ⁹³ The Committee is to address individual Party’s performance within the parameters of the modalities and procedures (MP) adopted by the CMA in 2018 to guide the Committee’s work.Footnote ⁹⁴

Consideration of a Party’s situation by the Committee may be initiated in three different ways depending on the issues of concern.Footnote ⁹⁵ Firstly, as seen in many MEAs including the Montreal Protocol, a State may refer issues related to its own implementation or compliance to the Committee of its own motion.Footnote ⁹⁶ Secondly, consideration of a Party’s situation by the Committee may be initiated automatically as a matter of course in certain types of situation where non-compliance is apparent on the face of the public record, as provided for under the Agreement in relation to a Party’s non-fulfillment of its obligation to communicate or maintain an NDC, its reporting obligationsFootnote ⁹⁷ or non-participation in the FMCP.Footnote ⁹⁸ Thirdly, with a Party’s consent, the Committee may deal with cases involving significant and persistent inconsistencies between the information a State has submitted within the ETF and Article 13 MPG.Footnote ⁹⁹ Additionally, the Committee has a role, as seen in MEAs, including the Minamata Convention on MercuryFootnote ¹⁰⁰ and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their DisposalFootnote ¹⁰¹ in identifying and making recommendations to the CMA on issues of a systemic nature, at its own initiative or on the request of the CMA.Footnote ¹⁰²

The Committee is to constructively engage a Party at all stages, remaining in regular contact or making all efforts to do so.Footnote ¹⁰³ The MP recognise several types of action that the Committee may take in order to help bring about a Party’s compliance with the Paris Agreement.Footnote ¹⁰⁴ Firstly, the Committee may engage in a dialogue with the Party, to identify the challenges the Party is facing in implementing the Paris Agreement and make recommendations as well as share information on how to access support, thus acting as a ‘source of advice and assistance’.Footnote ¹⁰⁵ Secondly, the Committee may assist the Party in its engagement with institutions that may be able to help meet its needs in relation to finance, technology and capacity building to help it better implement its obligations.Footnote ¹⁰⁶ The Committee may make recommendations in this regard to the Party concerned, and communicate those recommendations to the relevant institutions. Thirdly, as in the case of compliance committees operating under other MEAs, the Committee may recommend a Party’s development of an action plan, providing assistance on request, and encourage a Party that has developed a plan to inform the Committee of its implementation progress.Footnote ¹⁰⁷ Fourthly, in readily identifiable circumstances, the Committee may issue findings of fact regarding a Party’s non-participation in the FMCP,Footnote ¹⁰⁸ or a Party’s non-submission of particular communications and reports.Footnote ¹⁰⁹ These communications and reports comprise the communication (and maintenance) of an NDC,Footnote ¹¹⁰ NIRs,Footnote ¹¹¹ information necessary for tracking progress in implementing and achieving NDCsFootnote ¹¹² and, in the case of developed country Parties, information on support provided or mobilised to developing country Parties, as well as communication of finance to be provided (ex ante) to developing countries.Footnote ¹¹³

The Implementation and Compliance Committee’s work has to be considered in the context of the Paris Agreement’s accountability and compliance scheme as a whole. The Committee’s work complements the TER. The Committee provides a backstop in cases of repeated inaction, while the TER also performs aspects of a facilitative role. The FMCP that follows the TER process provides a plenary inter-State process enabling all States to take partial ownership of the drive for compliance. The Paris Agreement’s Global Stocktake, also mentioned, enables the efforts of all to be evaluated against appropriate benchmarks. Global Stocktakes will take place every five years, beginning in 2023, as a way to consider the combined, collective performance of all Parties. The Global Stocktake process collects and assesses technical information, leading to a discussion of the findings that will inform all Parties’ actions under the Agreement on an ongoing basis.Footnote ¹¹⁴

The value added to the Paris Agreement by its combined accountability and compliance arrangements is clear. They can be expected to make a significant difference to the Agreement’s implementation. Their standout features include the way they embrace global and technical processes, including with plenary participation, as well as Party-specific compliance committee processes involving a higher level of facilitative engagement. Parties to the Paris Agreement will be able to turn to the Implementation and Compliance Committee to gain access to increased assistance with implementation, and for support in the adoption and rollout of action plans where needed. The Committee’s power to make findings of fact will also be significant for formal transparency as well as constituting a partial sanction for certain of States’ implementation failures.

Like the Paris Agreement, the IHR 2005 represent a body of international law where interdependence is strong and coordinated regulation is essential. The regulatory and administrative actions taken by States to give effect to their commitments will be crucial. Yet in the WGPR there appears to be as yet an insufficient focus on how new compliance arrangements could assist with helping ensure the implementation of international law on pandemic preparedness and response ‘on the ground’.

In summary, what does the Paris Agreement model offer in relation to the development of compliance machinery for the IHR and potentially more widely? Of all the features of the Paris regime, aspects of the Implementation and Compliance Committee’s role may be the most valuable to consider for transfer, combined with an appropriate form of prior technical review like the FMCP, which has some similarities with the idea of universal periodic reviews already under discussion and trial in the WHO. The Implementation and Compliance Committee is an independent standing body mandated to take an objective perspective.Footnote ¹¹⁵ Concepts of dialogue, support and potentially ongoing processes underpin how the Committee will function. The CMA’s modalities and procedures specifically envisage this idea of dialogue,Footnote ¹¹⁶ in which there is an exchange of communications elucidating a Party’s situation and the challenges it faces. The Committee’s independent status and express mandate to make recommendations and to share information on how to access support is important, together with the capacity to recommend a Party develop an action plan and to assist with this on request, also looking at a Party’s progress under the plan where a Party accepts the Committee’s encouragement to keep the Committee informed.Footnote ¹¹⁷

The Committee’s power to make findings of fact is also potentially transferable, as is its systemic role, which could be valuable in the IHR 2005 and similar contexts to help identify needs for targeted multi-jurisdictional implementation assistance programmes. There is merit, too, in potentially transferring the global stocktaking notion to the IHR 2005, even taking into account that managing a diminishing planetary carbon budget is naturally different to preparations for preventing the international spread of diseases. Processes that will catalyse political motivation at the highest level have an important role to play.Footnote ¹¹⁸ Global stocktaking in the pandemic context could embrace both States’ individual domestic pandemic readiness and the extent to which countries have jointly engaged in the necessary level of planning for international co-operation on all aspects of disease outbreak and pandemic management.

An overarching difference remains between the Paris Agreement and many international agreements, including the IHR 2005: States’ substantive emissions reductions targets in the Paris Agreement are not binding and indeed are individually determined by States themselves. The Paris Agreement’s compliance and accountability machinery is oriented around ensuring implementation of the Parties’ reporting obligations, although there is also potential for a Party to seek the Implementation and Compliance Committee’s engagement when struggling to meet its NDC target. In contrast, the IHR 2005 set down the substantive capacity outcomes that Parties are to achieve. This is a case of a fixed floor. Retaining such binding substantive legal commitments in the IHR 2005 and elsewhere makes sense, on balance. However as indicated in the next section of this chapter, for facilitative implementation and compliance machinery to work effectively in such contexts it may need to be taken as written that States’ underperformance will be indulged while they continue to make appropriate progress towards better implementation, keeping the spectre of State responsibility at a distance.

2.4 Convergence in the Application of Managerial and Enforcement Theory

In addition to the practical considerations addressed in the previous part of this chapter, the extent to which States’ populations are now physically, economically and legally dependent on one another also strengthens the theoretical basis for more widespread facilitative implementation and compliance procedures.Footnote ¹¹⁹ In situations of intensified interdependence, the previously opposing managerial and rationalist theories of compliance converge to support reliance on facilitative compliance mechanisms. Rather than having to be forced to do so, it becomes increasingly rational for each State to change its conduct and comply as fully as possible with its international commitments. When a treaty addresses internationally shared regulatory and policy problems, it will be in a State’s own interests to comply thoroughly. Compliance by a State will directly reduce the threat posed to it, by reducing the scale of the problem. Compliance by a State will also indirectly reduce the threat posed to it because it will help induce compliance by others and encourage their full participation to protect internationally shared interests.

In sum, the world’s situation as contemplated by Abram Chayes and Antonia Handler Chayes’ seminal 1995 work on the managerial approach, The New Sovereignty,Footnote ¹²⁰ has since moved on, into an era of intensified interdependence. Today, the reasons that States may do their best to comply with relevant obligations may include not only normative considerations such as their desire for good standing internationally as emphasised by the Chayes, but increasingly also a rational appreciation of their physical needs in an interdependent world. International compliance machinery employing a facilitative approach can assist States in meeting these combined goals.

2.5 Conclusion

A world in which international law continues to grapple with the prevention of some of the greatest threats humanity has known to date is a world in which facilitative compliance linked with targeted support and capacity building must surely play a central role. Compliance machinery needs to be built on a supportive but serious ethos, enabling a well-informed and realistic approach, and taking into account the limitations of actors in situations where compliance is a challenge and equity an important consideration. Negotiating governments should consider the Paris Agreement’s compliance machinery (and the accumulated practice of reliance on NCMs under MEAs), when they consider the types of mechanism that could be put in place to help improve compliance with various relevant bodies of international law.

In international pandemic law and in other international legal contexts, States could do well to consider the way in which Paris Agreement-style accountability and compliance arrangements need to go beyond declaratory processes presenting States’ progress and involve independent, expert engagement with individual States’ implementation needs, including taking concrete steps to assist with requests for resources, capacity and remedial planning. These are crucial factors that will need to be seriously considered for introduction into implementation and compliance procedures if international law on pandemic prevention preparedness and response is to be sufficiently effective.

At the time this chapter was initially drafted, in January 2022, and informally circulated, negotiations on both the intended treaty on pandemic preparedness and response and on the BBNJ instrument were mid-stream. As part of its participation in the pandemic treaty negotiations, New Zealand put forward the suggestion in April 2022 that the Paris Agreement could be used as a model for non-compliance procedures under the new treaty.Footnote ¹⁵¹ At the same time, the text of the expected BBNJ instrument was also evolving. Initially it was envisaged simply that the BBNJ agreement’s Conference of the Parties might in due course adopt co-operative procedures and institutional mechanisms to promote compliance and address cases of non-compliance.Footnote ¹⁵² This text was itself in square brackets and at least one delegation (the United States) requested its deletion.Footnote ¹⁵³ Nevertheless, the President of the negotiations, Ambassador Rena Lee of Singapore, retained the provision in the draft text, produced in July 2022, adding as an alternative a more extended five-paragraph compliance provision which would establish a compliance committee based closely in part on the Paris Agreement.Footnote ¹⁵⁴ At the negotiations in August 2022 in New York, where New Zealand chaired the talks on the compliance issue, States refined this provision.Footnote ¹⁵⁵

The non-compliance provision in the BBNJ text is likely to be of particular value within the BBNJ regime because the instrument’s practical effect will depend closely on compliance with procedural obligations, including commitments on information flow. Equity and environmental protection can best be assured with the necessary transparency and accountability, whether this be in the accessing of marine genetic resources or the conduct of appropriate environmental impact assessment in zones abutting the Area. An appropriate NCM will complement existing law of the sea dispute settlement machinery, facilitating provision of assistance to States who may be facing technical and political implementation challenges and enabling the international community to better protect populations’ mutually important interests for the long term. Inclusion of an appropriate NCM in the new pandemic treaty instrument, and in the negotiations for the new international legally binding instrument on plastic pollution, would be a similarly valuable step. Governments must be prompted more actively to ensure they adopt appropriate NCMs, sooner rather than later, in all relevant spheres.

3.1 Introduction

This chapter will explore the evolution of Non-Compliance Procedures (NCPs). NCPs are designed in principle to facilitate and assist the compliance of States Parties with obligations deriving from Multilateral Environmental Agreements (MEAs), but potentially trigger harsher means to elicit compliance, such as suspension of a Party’s rights under an MEA. The chapter will begin by analysing the classical NCPs such as the NCP in the Montreal Protocol on Substances That Deplete the Ozone Layer (Montreal Protocol),Footnote ¹ Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),Footnote ² the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention),Footnote ³ and the Kyoto Protocol.Footnote ⁴ The chapter will then analyse new NCPs such as those established in the Paris AgreementFootnote ⁵ and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam Convention)Footnote ⁶ and the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention).Footnote ⁷ This chapter also takes a new look at classical NCPs in the Montreal, CITES and Aarhus Conventions and at whether, in the years since they were established, compliance has been ensured by more facilitative than coercive methods.

NCPs’ functions raise questions of legitimacy; likewise, the powers of Conferences or Meetings of the Parties (COPs/MOPs) which decide ultimately on non-compliance in the majority of cases. Thus, the next step of the analysis will be the issue of the legitimacy of the functions of NCPs and COPs/MOPs in both old and new regimes. As will be further explained, the premise on which the legitimacy of the new generation of NCPs is hinged is the concept of facilitative compliance, and the exclusion of the possibility of far-reaching and radical measures of suspension in the rights of a Party to an MEA.

3.2 The Question of Legitimacy: General Introduction

The general question of the definition of legitimacy and its link to legality in international law is a subject which is still debated and largely unresolved. An in-depth discussion of this topic exceeds the framework of this chapter. As it has been aptly observed,

According to Wolfrum,Footnote ⁹ there are different elements which may legitimise authority. These elements include source-based legitimisation, procedure-based legitimisation and result-based legitimisation, or a combination thereof.Footnote ¹⁰ In relation to source-based legitimisation, the classical view is that this derives from the consent of States. This is most pronounced in the case of treaties, in which international law obligations are legitimised through national institutions. Questions do remain in connection with the chain of legitimacy, such as the situations when some of the participating States are not democratically structured, but it is beyond the scope of this chapter to discuss these issues in depth.Footnote ¹¹ Consent-based legitimacy is more complex in the case of customary international law in which the legitimising role of consent is less clear-cut than in relation to treaties. However, if customary international law is understood as a tacit agreement of States concerned, ‘then its ultimate source is the consent of States’.Footnote ¹² More problematic is the view according to which the source of customary international law is the fictitious consent of States. In this view, customary international law is based on the voluntary acts of States ‘which they undertake in the awareness of their implications for the possible development of customary international law’.Footnote ¹³ Finally, an important element of consent-based legitimacy is the form in which it is accorded by States. Consent can be given to one act, which results in a singular international obligation (static), or can conversely be accorded as a general authorisation for the exercise of a dynamic (evolutionary) function setting up a regime of governance, consisting of a series of acts, based on a single, general authorisation by States. Such a regime may modify the regime of governance.Footnote ¹⁴

Authority can secondly be legitimised through adequate and fair procedures (such as the rules concerning the composition of an institution, or the rules relating to its decision-making procedures and participation).Footnote ¹⁵ Public participation and transparency, according to Bodansky, are fairly weak forms of legitimation as they merely accord an opportunity for the public to communicate their views to relevant officials rather than enabling the public to participate in decision-making.Footnote ¹⁶ Nevertheless, as will be analysed further, public participation and transparency play a pivotal role in NCPs’ legitimacy.

Outcome is the third and the last element potentially legitimising authority. This basis for legitimacy is more vague and less tangible than source and procedure-based legitimisation. In broad brushstrokes, if an institution acting on the basis of an established procedure does not achieve the expected results, then this may lead to the erosion of legitimacy.Footnote ¹⁷

Wolfrum’s analysis of legitimacy is highly positivistic. In fact, the concept of legitimacy has not only a normative but also a sociological aspect. On the one hand, in its sociological aspect, it refers to popular attitudes about authority. As Bodansky writes, ‘[a]uthority, has popular legitimacy if the subjects to whom it is addressed accept it as justified’. Bodansky observes that ‘the more positive the public’s attitudes about an institution’s right to govern, the greater its popular legitimacy’. On the other hand, ‘legitimacy’ can have a normative meaning, referring to whether a claim to authority is well founded; and to ‘whether it is justified in some objective sense’.Footnote ¹⁸ These two aspects of legitimacy are conceptually distinct.Footnote ¹⁹ Bodansky has also opined that legitimacy in the context of international environmental law developed ‘through a consensual rather than an authoritative process’ and the phenomenon of authority plays only an ancillary role.Footnote ²⁰

The next issue, which is subject to ongoing debate, is the question of the link between legality and legitimacy. There are highly divergent views on this subject and there does not exist one single approach which would gain general approval. It may be said that, as argued by Bodansky, legality plays a fundamental role in ensuring that the exercise of authority by an international institution can be connected to its treaty basis, which in fact is consent.Footnote ²¹ However, Bodansky is also of the view that legitimacy is a broader concept than that of legality. For example, legality is not the only criterion for assessing legitimacy and the justification for exercising authority may also be based on wider extra-legal considerations and not be limited to legally binding rules.Footnote ²²

The general notion of legitimacy adopted in this chapter will be grounded in the concept of legitimacy as based on consent accorded as a general authorisation for the exercise of a dynamic (evolutionary) function, setting up a regime of governance which consists of a series of acts based on a single, general authorisation by States. As mentioned, in Wolfrum’s analysis, such a general consent may modify the regime of governance. This form of consent is particularly apt in relation to environmental dispute settlement and the establishment and operation of NCPs. COPs/MOPs adopt decisions (most commonly on the basis of so-called enabling clauses contained in an MEA) to set up NCPs, which through a series of decisions, may contribute to the implementation of State Parties’ obligations, influencing the regime of governance. However, it may be added that legitimacy in relation to the operation of NCPs sits at the nexus of consent-based and procedural legitimacy. Procedural legitimacy (transparency, public participation) will be discussed further.

3.3 Conferences of the Parties/Meetings of the Parties: General Considerations

COPs and MOPs play a pivotal role in the functioning of NCP regimes. They ultimately decide on non-compliance and the measures which are to be imposed in the event of non-compliance. They are well placed to manage non-compliance. As the highest organs of an MEA, they exercise all-encompassing functions relating to the MEA, adopt the most important decisions and have an overview of the whole agreement.

There is a plethora of bodies established by various multilateral treaties whose functions go beyond just managing the treaty regime. However, it was the advent of MEAs in particular that initiated a fertile legal (if inconclusive) debate on the nature of the functions of COPs. When MEAs began to be established after the 1972 Stockholm Conference on the Human Environment, COPs were created in order to make the management of MEAs more efficient and flexible, in contrast to previous bureaucratic arrangements. The functions of COPs have evolved beyond those of the early, basic COP with limited powers as in the Ramsar Convention on Wetlands of International Importance.Footnote ²³ The COP of the Ramsar Convention today enjoys wide powers, as do other COPs. The term ‘Conference of the Parties’ was first used in the 1973 Convention of Trade in Endangered Species of Wild Fauna and Flora (CITES). The original Article 6 of that Convention provided that the COP would ‘as the necessity arises, convene Conferences on the Conservation of Wetlands and Waterfowl’. It also stated that the COP had an advisory character. This Article was amended in 1986 in order to create a Conference of the Contracting Parties, tasked with the oversight and promotion of the Convention’s implementation. The reference to the COP’s advisory character was deleted. The 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other MatterFootnote ²⁴ created a body (the Consultative Meeting of States Parties) that enjoyed more powers. This body, however, lacked any express authority to establish subsidiary bodies and had very limited powers of supervision.

The powers of COPs today vary. Camenzuli, however highlights one common trend among contemporary COPs; namely that their powers are very broad, including their law-making powers. She has identified the following general powers: setting priorities and reviewing the implementation of the relevant convention based on reports submitted by governments; consolidating and analysing information from governments, NGOs and individuals to make recommendations to the Parties on the implementation of the convention; making decisions necessary for promoting the effectiveness of the convention; revising the convention when necessary; and acting as a forum for discussing matters of importance.Footnote ²⁵ As a rule, the powers of COPs are set out in the referent treaty. However, certain treaties define COPs’ powers in an open-ended fashion. For example, the London Convention provides that COP is ‘to consider any additional action that may be required’ (Article XIV(4)(f)). The 1979 Convention on Long-range Transboundary Air PollutionFootnote ²⁶ provides that the COP can ‘[f]ulfil such other functions as may be appropriate under the provisions … of the Convention’ (Article 10(2)(c)). The UNFCCC states that the COP is to ‘[e]xercise such other functions as are required for the achievement of the objective of the Convention’ (Article 7(2)). COPs often have the mandate to keep the implementation of the treaty ‘under regular review’ and make, within their mandate, the decisions necessary to promote effective implementation (see e.g., the Paris Agreement, Article 16, paragraph 4).

COPs’ functions cover both external and internal matters. Several of their functions can develop international law. They are the following: (i) powers of decision-making on the amendment and modification of conventions and the adoption of new protocols; (ii) decision-making and resolution powers; (iii) supervisory powers; (iv) interpretative powers; (v) powers in respect of the establishment of non-compliance mechanisms (vi) keeping under regular review the implementation of the treaty (e.g., Article 16(4) of the Paris Agreement). Through the reviewing process COPs may ‘examine specific difficulties of compliance and consider measures aimed at improving it’.Footnote ²⁷ As previously observed, there is no uniform and consistent view on the legal nature of the COPs in scholarship. The most prevalent view is that they are of a hybrid character, positioned between issue-specific diplomatic conferences and the permanent plenary bodies of international organisations, and that they exercise their functions at the interface of the law of treaties and the law of international organisations.Footnote ²⁸ They constitute useful fora for State Parties to evolve treaty regimes and co-operate. They are treaty bodies in the sense that they are created on the basis of a treaty, but they should not be equated with bodies that comprise independent experts or bodies with a limited membership.

The extensive range of functions of MEAs is an example of so-called creative legal engineering. The powers of the organs established by MEAs, in particular COPs, gave rise to varying views regarding the nature of convention organs and bodies endowed with decision-making powers. According to one view, they can be seen as free-standing entities, involving institutional arrangements, or structures, which are independent from the Parties, and having, at least to a certain extent, an autonomous character in the sense of having (i) their own law-making or rule-making powers (or at least, the power to generate or alter obligations) and (ii) the power to formulate, or operate, mechanisms within the treaty regime, such as compliance mechanisms, which may have effects that are binding on the Parties. The Kyoto ProtocolFootnote ²⁹ granted a very broad functional remit to its MOP: ‘The Conference of the Parties shall define the relevant principles, modalities, rules and guidelines, in particular for verification, reporting and accountability for emissions trading. Any such trading was to be supplemental to domestic actions for the purpose of meeting quantified emission limitation and reduction commitments.’ It is clear that the MOP of the Kyoto Protocol was empowered to fill in the gaps in the text of the treaty and it has been the MOP that has also set out the modalities for the operation of the treaty’s mechanisms such as emissions trading, joint implementation and the clean development mechanism.

Churchill and Ulfstein refer to institutions such as COPs and MOPs as ‘autonomous institutional arrangements’ (AIA).Footnote ³⁰ Alternatively we could adhere to the view that COPs can be seen as no more than a form of diplomatic conference providing a continuous, or at least regular, context within which decisions can more readily be made than through the calling of ad hoc diplomatic conferences. In fact, it is submitted that COPs /MOPs may take on the character of either an AIA or a diplomatic conference, depending on both the substantive nature of what is discussed, and on whether or not their decisions will require subsequent validation to become binding on the Parties.

3.4 Non-Compliance Procedures: General Considerations

This section will deal with so-called non-compliance procedures, which concern measures directed at the Parties to MEAs in cases of non-compliance with treaty provisions or the decisions of COPs. Non-compliance procedures can be considered quasi-legal, as they, with the possible exception of the Enforcement Branch of the non-compliance mechanism established under the Kyoto Protocol, do not result in formally binding decisions. Non-compliance procedures do, though, uniformly address deficits in the implementation of MEAs. It has been said that they ‘counteract, by means of cooperative approaches, the symptoms and causes of failure by Parties in the implementation of, and compliance with, their obligations’.Footnote ³¹ Frequently, non-compliance is not the result of wilful disobedience, but due to a lack of capacity to implement a treaty. Therefore, NCPs also address the root causes of failure to implement a treaty, such as the need for capacity building and reduction of compliance costs; the functions of the Paris Agreement’s Compliance Committee provide a good example.Footnote ³²

However, NCP decisions on non-compliance carry great weight and they have proven to be a very effective mechanism of engendering compliance. Not all decisions on non-compliance are referred to COPs/MOPs. For example, the Paris Agreement’s Compliance Committee reports annually to the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA) but adopts it decisions autonomously. Further, in its decisions ‘[t]he Committee may identify issues of a systemic nature with respect to the implementation of and compliance with the provisions of the Paris Agreement faced by a number of Parties and bring such issues and, as appropriate, any recommendations to the attention of the CMA for its consideration’.Footnote ³³

Since the establishment of a Non-Compliance Committee under the Montreal Protocol in 1992, it has been a common practice of States Parties to MEAs to create treaty bodies, called ‘Compliance’ or ‘Implementation Committees’ (or both) which have the function of determining a State Party’s compliance with its international obligations. NCPs may be established in the treaty itself (e.g., the Paris Agreement) or on the basis of so-called enabling clauses in MEAs, which provide for the establishment of such a procedure by a decision of the relevant COP. An example of this is found in Article 8 of the Montreal Protocol.Footnote ³⁴ However in a few cases such NCPs have been established without such an authorisation. For example, the NCP in the Basel Convention on Transboundary Movement of Hazardous Wastes,Footnote ³⁵ was established without an enabling clause in the Agreement. NCPs are designed to respond to a breach of environmental obligations in the multilateral, not bilateral, context. The multilateral context is capable of accommodating the type of obligations which are of a character relevant to community interests in a truly satisfactory manner. Environmental obligations, in particular obligations relating to global issues, are not reciprocal in nature. For this reason, the classical settlement of dispute procedures as envisaged by Article 33 of the UN Charter, which are bilateral in nature, are perhaps less suitable for addressing non-compliance in a multilateral context and remedying non-compliance in respect of global issues such as climate change, and the protection of biodiversity or the ozone layer.

Legal procedures such as judicial and arbitration are different in nature, as they are adversarial, rendering binding decisions, based on third-party application of the law, and their legitimacy has its roots in different justifications. The (quite extensive) judicial practice in environmental matters before courts and tribunals has generated some critical comments. The judicial settlement of environmental disputes has been mostly focussed in the International Court of Justice (ICJ) and the International Tribunal for the Law of Sea (ITLOS). It may be said that there have been certain environmental considerations in the jurisprudence of the World Trade Organization, but they have essentially been analysed from the point of view of a limitation to the liberalisation of trade.Footnote ³⁶ The European Court of Human Rights (ECtHR) has dealt with a number of cases where environmental harm was interfering with private and family lives (Article 8 of the European Convention on Human Rights (ECHR)).Footnote ³⁷

There has been some support in the literature for the view that environmental disputes are amenable to judicial settlement partly due to the ‘hardening’ of the fabric of international environmental law.Footnote ³⁸ This view is not entirely shared by the author of this chapter. The existing jurisprudence of international courts and tribunals has admittedly relied to some extent on principles of international environmental law and in some instances even clarified and developed them. However, international courts and tribunals (in particular the ICJ) prefer to apply well-tested principles of general international law and their attempts to venture into the realm of pure international environmental law have often been subject to severe criticism. An example is the ICJ’s pronouncements in Costa Rica v Nicaragua regarding compensation for environmental damage which demonstrate that the Court has not entirely grasped the particularities of international environmental law.Footnote ³⁹ It was stated in this regard that ‘overall, the judgment demonstrates that the law on this topic may not be completely settled and there is plenty to argue about in future cases’.Footnote ⁴⁰ The Court was much more comfortable in invoking within the framework of international environmental law the classical Chorzow Factory pronouncement according to which a responsible State has to ‘wipe out all consequences of a wrongful act’.Footnote ⁴¹

There are also alternative explanations as to why NCPs are more suited to deal with environmental non-compliance than traditional dispute settlement procedures. It may be that States prefer NCPs due to the fact that they exercise more control over the whole process and its result compared to third-party mechanisms, such as judicial or arbitral procedures. NCPs have less stringent effects; decisions are not final in the form of res judicata and are less intrusive. NCPs also favour prevention by relying on monitoring, verification or reporting which better suits the aims of international environmental law.Footnote ⁴² NCPs’ character is well defined by reference to the Mechanism for Promoting Implementation and Compliance with the Basel Convention.Footnote ⁴³ In its Objectives it is stated that

The mechanism’s nature is described in the following terms:

There are several NCP mechanisms which follow more or less the classical mechanism set out under the Montreal Protocol. The main features of the NCP of the Montreal Protocol are its facilitative character and transparency. In addition, the NCP under the Montreal Protocol follows the requirements of due process: notification, the right to a fair hearing and impartiality. Although the NCP is not a judicial procedure, it has certain characteristics, such as the right to a fair hearing, which according to paragraph 10 of the NCP, ensures that a Party potentially in non-compliance has the right to participate in the consideration by the Committee of relevant submissions.

However, although the main feature of the Montreal Protocol NCP is its facilitative character, one of the measures that may be adopted in cases of non-compliance is the suspension of a State Party’s treaty rights. In the case of the Kyoto Protocol, in particular, the consequences of a finding of non-compliance through the NCP were onerous when a State Party had failed to comply with its emissions reduction target. Yet it may be said that the far-reaching powers of the NCP mechanism under the Kyoto Protocol are unique and in the view of the author are not representative when it comes to drawing conclusions concerning the legitimacy of NCPs in general, also taking into account previous (older) generation mechanisms.Footnote ⁴⁶

This controversial aspect of non-compliance under the Kyoto Protocol is excluded from the regime of the Paris Agreement.Footnote ⁴⁷ Article 15 of the Paris Agreement establishes a Compliance Committee as a mechanism to facilitate implementation and promote compliance with the Agreement. The task of the Committee is explicitly facilitative: ‘The Committee is expected to enhance the effective functioning of the Paris Agreement both by encouraging parties to implement the Agreement and by holding them accountable for aspects of their performance. This should build confidence and trust among the parties.’Footnote ⁴⁸ The Committee is a standing, expert body with a mandate to address situations related to the performance of individual Parties. The procedure under the Paris Agreement has been agreed as follows:

1. 1. The mechanism to facilitate implementation of and promote compliance with the provisions of the Paris Agreement established under Article 15 of the Agreement consists of a committee (hereinafter referred to as the Committee).

2. 2. The Committee shall be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive. The Committee shall pay particular attention to the respective national capabilities and circumstances of Parties.

3. 3. The Committee’s work shall be guided by the provisions of the Paris Agreement, including its Article 2.

4. 4. In carrying out its work, the Committee shall strive to avoid duplication of effort, shall neither function as an enforcement or dispute settlement mechanism, nor impose penalties or sanctions, and shall respect national sovereignty.Footnote ⁴⁹

The functions of the Committee are elaborated in paragraphs 20 to 27, as well as paragraphs 32 to 34 (Consideration of Systemic Issues) of the Annex to Decision 20/CMA.1, titled ‘Modalities and Procedures for the Effective Operation of the Committee Referred to in Article 15, paragraphs 1-3’. Paragraph 22(a) of the Modalities and Procedures provides that the Committee will initiate consideration of issues which relate to the core legally binding obligations under the Paris Agreement. These are cases where a Party has not:

1. (a) Communicated or maintained a nationally determined contribution (NDC) under Article 4 of the Paris Agreement, based on the most up-to-date status of communication in the public registry referred to in Article 4, paragraph 12, of the Paris Agreement;

2. (b) Submitted a mandatory report or communication of information under Article 13, paragraphs 7 and 9, or Article 9, paragraph 7, of the Paris Agreement;

3. (c) Participated in the facilitative, multilateral consideration of progress;

4. (d) Submitted a mandatory communication of information under Article 9, paragraph 5, of the Paris Agreement.Footnote ⁵⁰

The innovative nature of the measures which may be adopted by the Compliance Committee under the Paris Agreement merits attention.

The view has been expressed that the Committee’s architecture and functions ‘are designed in such a way as to provide for the legitimacy, continuity, stability, and predictability of its activities’ and that ‘[i]ts operation will be an important cornerstone of the Agreement’s legitimacy, effectiveness, and longevity’.Footnote ⁵¹

According to paragraph 30 of the Modalities and Procedures, ‘the Committee shall take appropriate measures’. These may include the following:

1. (a) Engage in a dialogue with the Party concerned with the purpose of identifying challenges, making recommendations and sharing information, including in relation to accessing finance, technology and capacity-building support, as appropriate;

2. (b) Assist the Party concerned in the engagement with the appropriate finance, technology and capacity-building bodies or arrangements under or serving the Paris Agreement in order to identify possible challenges and solutions;

3. (c) Make recommendations to the Party concerned with regard to challenges and solutions referred to in paragraph 30(b) above and communicate such recommendations, with the consent of the Party concerned, to the relevant bodies or arrangements, as appropriate;

4. (d) Recommend the development of an action plan and, if so requested, assist the Party concerned in developing the plan;

5. (e) Issue findings of fact in relation to matters of implementation and compliance referred to in paragraph 22(a) … .Footnote ⁵²

The list of measures is a result of long and complex negotiations; thus, their application requires caution from the Committee. The Committee has discretionary powers to apply the measures. However, when doing so, ‘its decision is to be informed by the legal nature of the relevant provisions of the Agreement and the comments received from the party concerned, and the Committee “shall” pay particular attention to the national capabilities and circumstances of the party concerned.Footnote ⁵³ Special circumstances of LDC [Least Developed Countries] and SIDS [Small Island Developing States], as well as situations of force majeure, are to be recognized, ‘where relevant’.Footnote ⁵⁴ Under clauses (b) and (c) the Committee fulfils a facilitative role and under clause (d), similarly to other MEAs, it may recommend the development of an action plan.Footnote ⁵⁵ Measure (e) only relates to the matters referred to in paragraph 22(a). This measure was the subject of much debate. The measure sits in contrast with the facilitative nature of the mechanism and has the potential to be confrontational.Footnote ⁵⁶ A compromise was reached that under paragraph 22(a), any ‘finding of fact’ ‘would relate to readily identifiable circumstances of non-compliance with a binding obligation, such as the non-submission of a report … ’ and that ‘such a finding would lead to the logical conclusion that the party was in non-compliance, but without a formal finding of non-compliance by the Committee’.Footnote ⁵⁷ There are two interesting features of this measure: it is based on the legal nature of the provisions concerned; and

As we can see from the Paris Agreement NCP regime, very harsh measures of suspension have been abandoned. There is a marked evolution in the recent NCPs, departing from the ‘classical’ regimes based on hard measures. This is not the only recent NCP which has abandoned harsh measures in cases of non-compliance and replaced them with a facilitative approach. The Rotterdam Convention has also elaborated an NCP where the possibility of a suspension in the rights of a Party to a treaty has been eradicated. Both the Compliance Committee and the Conference of the Parties will have recourse in cases of non-compliance to measures which offer assistance rather than punish.Footnote ⁵⁹ A similar soft approach has been adopted by the Implementation Committee of the Water Convention.Footnote ⁶⁰ This Convention also defines its compliance procedure as facilitative, supportive and collaborative in nature (Articles I and XI). The means to suspend a Party’s rights exist but have never been used. The Committee has the jurisdiction to render Advisory Opinions, which are outside the remit of compliance (‘The advisory procedure is aimed at facilitating implementation and application of the Convention through the provision of advice by the Committee and shall not be regarded as alleging non-compliance … ’ (Article V)). Such a procedure may be requested by the Parties in respect of difficulties in implementing the Convention vis-à-vis each other, and/or non-Parties (subject to their consent) or by a Party in respect of its own compliance difficulties. The Parties or non-Parties considered to be potentially concerned and which choose not to participate in the advisory procedure will be kept informed of its progress. The Committee provides advice and assistance for individual Parties and groups of Parties in order to facilitate their implementation of the Convention.Footnote ⁶¹ Such a procedure is an entirely unique and new way of solving disputes between States in the most non-confrontational manner.Footnote ⁶²

It may be added that the International Law Commission in its Guidelines on the Protection of the Atmosphere has included a provision on non-compliance, which follows the patterns set out in other MEAs.Footnote ⁶³ However, it is worth noting that Special Rapporteur Murase explained that he ‘favoured cooperative compliance mechanisms, meant to give assistance to a non-compliant party, over punitive or enforcement mechanisms, which were based on the responsibility of States and intended to place penalties on the non-compliant party’.Footnote ⁶⁴

3.5 Legitimacy and NCPs

Addressing the question of legitimacy of NCPs, Savaşan refers to the legal basis of their establishment, that is, whether an enabling clause in the primary treaty was the basis of the NCP; or whether they were established without such a clause.Footnote ⁶⁵ According to Savaşan, the problem of legitimacy only arises when such a clause is absent and a COP decision establishes a ‘hard’ NCP with binding outcomes imposing obligations that go beyond the applicable treaty.Footnote ⁶⁶ Such an approach would eliminate from the category of objectionable NCPs the new generation of ‘soft’ NCPs (which do not include far-reaching measures in relation to a non-compliant State), as represented by the NCP in the Paris Agreement. Savaşan is of the view that the application of punitive measures applied in NCPs (e.g., under the far-reaching regime of the Kyoto Protocol) may enhance the deterrent effect of an NCP mechanism but also challenge their legitimacy and therefore ‘should be applied in line with the rules of international law’.Footnote ⁶⁷ It may be argued that in the event of very harsh and binding measures under NCPs, only the amendment of the treaty may justify them.Footnote ⁶⁸

Only if such measures are applied in accordance with international law will compliance be enhanced without compromising legitimacy. Such an application of punitive measures would be in accordance with determinacy (clear rule of law) and fairness.

As mentioned above, procedural safeguards are also elements of legitimacy. As persuasively argued by Savaşan, within NCP regimes, procedural safeguards protect legitimacy. These safeguards may include a preliminary phase of prior consultation between the Parties concerned; due process; and transparency of proceedings. Rights of confidentiality and transparency are guardians of fairness in these mechanisms.Footnote ⁶⁹ However, there are also some procedural elements of legitimacy which can be improved. For example, the role of civil society in the Montreal Protocol NCP does not meet the element of transparency. Civil society can take part in the proceedings as observers only if the secretariat notifies this and no Party objects. Contrastingly, under the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)Footnote ⁷⁰ NCP, any member of the public, that is, any natural or legal person, may submit a communication to the Committee, which definitely enhances legitimacy.Footnote ⁷¹

Questions regarding other aspects of the legitimacy of NCPs should not detract from the general issue of their usefulness in protection of the environment, that is, the outcomes. What is the relationship between the general usefulness of NCPs and their legitimacy? It appears that the procedural aspects of legitimacy (which have been mentioned), play a dominant role in their usefulness (outcomes). For example, the participation of civil society undoubtedly enhances the overall effectiveness of these mechanisms. However, the issue of the legitimacy of NCPs remains a broader one, encompassing all constitutive elements that is, substantive and procedural aspects and the outcomes, all entwined. The theory of consent-based legitimacy alone does not fully reflect the nature of legitimacy in these procedures, which is constituted of various elements, all of equal importance.

In the view of the author, the multilateral system on which NCPs are based makes them much better suited to address the issues concerned than classical settlement of disputes predicated upon bilateralism. NCPs indeed serve a common interest of States in the protection of the environment. That said, the UNECE Water Convention Implementation Committee, within the paradigm of its advisory function, can also, for instance, facilitate assistance within the bilateral context. This function co-exists with the NCP, which is based on multilateralism.

It may be added that NCPs, which at present are based on providing assistance rather than on imposing stricter measures in cases of non-compliance, are also better equipped to fulfil environmental aims than adversarial mechanisms. However, in this context, the empowering of the Paris Agreement Compliance Committee to make ‘findings of fact’ should be recalled. The Paris Agreement’s system of compliance and the role of the Committee has been aptly described in the following way: ‘The Committee can only apply facilitative measures, and cannot impose penalties, fines, fees, sanctions, or enforcement measures of any kind. However, there will be an element of public and political accountability associated with the Committee’s recommendations, including the “findings of fact”, as these relate to the non-performance of the relevant provisions.’Footnote ⁷²

The adoption of harsh measures in case of non-compliance raises questions. However, NCPs in modern practice in general either do not include such measures or refrain from applying them. For example, the main measure employed by the Committee and the MOP in the Aarhus Convention to ensure improvement in compliance (as applied in 41 per cent of cases) has been the ‘recommendation’ (paragraph 37(b)). A review of practice up to 2019 indicates the MOP has issued just one ‘caution’ (paragraph 37(f)). Cautioning, together with suspension (but not withdrawal) of special rights and privilegesFootnote ⁷³ is considered a ‘more confrontational’ means of enforcing compliance.Footnote ⁷⁴ The contemporary practice of the Montreal Protocol NCP evidences that indicative measure ‘c’ has not been resorted to but rather the provision of encouragement and facilitation to States in non-compliance. There is not a strict adherence to ascending order of the measures, as assistance (indicative measure ‘a’) is linked with caution (indicative measure ‘b’), thus applying a mild ‘carrot and stick’ approach. However, the harshest indicative measure ‘c’ has not been applied, thus softening the measures. While the MOP in its decisions refers to the possibility of recourse to indicative measure ‘c’, it has never applied this measure in contemporary practice. These examples clearly indicate that in the classical NCP under the Montreal Protocol there is a noticeable trend to avoid withdrawal of a Party’s rights and privileges.Footnote ⁷⁵

In respect of measures under the NCPs leading to assistance (providing that all procedural safeguards are upheld) rather than punishment, the question of legitimacy in a traditional sense (based on consent) may not arise. The modern trend is exemplified by the NCP in the Paris Agreement, the Rotterdam Convention and the approach of the International Law Commission’s (ILC) special rapporteur, Shinya Murase, with the focus on co-operative efforts combined with procedural safeguards.

Savaşan has observed that the concept of legitimacy is very complex, consisting of a multitude of diverse elements. It may be that such complexity commands further detailed examination and empirical studies ‘on the distinctive characteristics of different institutions and to develop legitimacy perspective for each one of these’.Footnote ⁷⁶ There is a great variety at present of these mechanisms that require case-by-case studies of legitimacy, based on theory and practice. It may be observed, however, that even if various NCPs merit a divergent analysis, there is a visible and common trend towards the adoption of softer measures, influencing the calculus of legitimacy.

3.6 Conclusions

The legal character and the different objectives of NCPs have evolved and fundamentally changed. Previous, classical procedures relied frequently on harsh methods, such as the CITES NCP regime under which States face suspension of trade rights. The new generation of NCPs have a different ethos and telos. Their structure, functions and measures are different and are based on the premise of facilitation. Such an evolution warrants a different approach in ascertaining the legitimacy of decisions adopted by compliance bodies, and COPs/MOPs, which have all become more facilitative bodies. In calculating the legitimacy of such new generation NCPs, procedural aspects come to the fore, focussing on transparency, and the participation of civil society, and so on, rather than more exclusively on State consent.

It is submitted that the diametrically different character of the new generation of NCPs should also be reflected in the change of the names of ‘Non-Compliance Committees’ into ‘Implementation Committees’ (a nomenclature already used in many MEAs). The new generation of NCPs are in fact implementation and facilitation bodies, whose functions are very different from the classical ones. A new classification of NCPs should be established, as the traditional approaches do not reflect the substantively divergent phenomenon of the new and facilitative NCPs. It may also be noted that despite the quite detailed and at times far-reaching obligations imposed on States by certain MEAs (such as the Montreal Protocol and the Aarhus Convention), COPs/MOPs have refrained from the imposition of harsh measures to ensure compliance, thus confirming the general trend of co-operation and understanding.

4.1 Introduction

Recent developments in international environmental law are increasingly characterized not only by the concern to ensure the effectiveness of existing international environmental obligations, but also by a growing awareness of the need to adopt a comprehensive and integrated approach to the management of natural resources. The latter implies the consideration of environmental protection as a collective interest, having due regard to the interdependence between local and global ecosystems, on the one hand, and to the integration of community legal interests into the management of natural resources shared by two or more States, on the other.

Non-compliance mechanisms (NCMs) are generally assumed to be a better mechanism than judicial settlements for achieving both the above-mentioned aims. This chapter intends to assess the correctness of this assumption through the analysis and comparison of two cases, which are characterized by some common features: the Gabčíkovo–Nagymaros (G/N) and the Bystroe Canal cases. Both relate to the planning of great infrastructure projects (the construction of a dam and a canal, respectively) with a possible environmental impact on the same water system (the River Danube and the Danube Delta, respectively). Both gave rise to international disputes, that, despite a judgment of the International Court of Justice (ICJ) (in the G/N case)Footnote ¹ and the triggering of non-compliance procedures (NCPs) under the EspooFootnote ² and the Aarhus ConventionsFootnote ³ (in the Bystroe Canal case),Footnote ⁴ are still pending or have remained substantially unsettled. Accordingly, certain lessons may be learned from an analysis of these proceedings.

This chapter will compare the approaches adopted by the ICJ in the G/N case and by competent monitoring bodies dealing with the Bystroe Canal case, with the aim of evaluating their respective contributions to: balancing the Parties’ conflicting interests; stimulating a meaningful and fruitful co-operation of the Parties towards an agreed solution; and integrating the interests of the Parties concerned with the interests of other States, individuals or group of individuals and the global environment. Some remarks will follow on the lessons learned from the two cases, drawing some general conclusions on the effective advantages of the mechanisms employed in each case.

4.2 The Gabčíkovo–Nagymaros Case

The ICJ judgment on the G/N case is one of the ICJ’s decisions most quoted and debated by international environmental scholars. Suffice here to recall that the Parties to the dispute – Hungary and Slovakia – strongly disagreed on the implementation of a bilateral treaty, concluded by Czechoslovakia and Hungary in 1977, that provided for a joint investment for the construction of ‘a single and indivisible’ barrage system on the Danube RiverFootnote ⁵ consisting of two systems of locks: one at Gabčíkovo (on the Czech side) and one at Nagymaros (on the Hungarian territory).Footnote ⁶

Divergences of the Parties in the implementation of the 1977 Treaty emerged from the very beginning. While Czechoslovakia was determined to pursue the project, Hungary was very reluctant. In particular, the latter contended that the aquatic environment of the Danube, the water volume and quality and the biodiversity of the region risked being severely jeopardized by the project.Footnote ⁷ After the suspension (and subsequently, the abandonment) of the works by Hungary in 1989 and the undertaking of an alternative solution by Czechoslovakia (including the so-called ‘Variant C’, entailing a unilateral diversion of the Danube on its territory),Footnote ⁸ on 7 April 1993, Hungary and SlovakiaFootnote ⁹ turned to the ICJ, acknowledging that ‘differences have arisen’ regarding the implementation and termination of the 1977 Treaty and that the Parties ‘have been unable to settle these differences by negotiation’.Footnote ¹⁰

The ICJ ruled in 1997 that Hungary was not entitled to unilaterally suspend the 1977 Treaty; the Treaty was still in force and the joint regime for its implementation was a basic element of the agreement. The Parties were thus required to ‘negotiate in good faith in the light of the prevailing situation and … to take all necessary measures to ensure the achievement of the objectives of the Treaty of 16 September 1977’.Footnote ¹¹ In particular, Hungary and Slovakia had ‘to find an agreed solution within the co-operative context of the Treaty’,Footnote ¹² taking into account, on the one hand, ‘the objectives of the Treaty, which must be pursued in a joint and integrated way’ and, on the other hand, ‘the norms of international environmental law and the principles of the law of international watercourses’.Footnote ¹³

Nearly a quarter of a century after the judgment, the negotiations between Hungary and Slovakia are pendingFootnote ¹⁴ and no agreed solution is expected in the short term.Footnote ¹⁵

4.3 The Bystroe Canal Case

The second case deals with NCPs and concerns the (re)constructionFootnote ⁶¹ of the Bystroe Canal in the Ukrainian sector of the Danube Delta. The Delta covers an area of approximately 5,800 km², shared by Romania (86 per cent of the area), Ukraine and Moldova – ensuring a connection for Ukraine to the Black Sea, as an alternative to the two existing routes through Romania. Romania is obviously concerned about the implications of the project for its economic and social system, but also about its impact on an area characterized by particularly vulnerable ecosystems. Due to its special features, the Danube Delta was included in the list of wetlands of international importance under Article 2.1 of the Ramsar ConventionFootnote ⁶² in 1991Footnote ⁶³. It was also inscribed on the World Heritage List in the same yearFootnote ⁶⁴ and designated as a Biosphere Reserve under UNESCO’s Man and the Biosphere (MAB) Programme in 1998.Footnote ⁶⁵

Ukraine notified Romania of its intention to develop the Bystroe Canal Project (BCP) in 2002, but it did not provide Romania with the information required under the Espoo Convention, including an EIA, which was completed after the project had already started.Footnote ⁶⁶ Ukraine was also considered to be in breach of its obligations under the Aarhus Convention for not having informed the public of the project and of its related decision-making process.Footnote ⁶⁷ The first phase of the BCP was completed in 2004; the final decision to continue with Phase II was taken in 2007, and in 2010 works related to its full-scale implementation started.Footnote ⁶⁸

The actions and omissions of Ukraine in respect of its international obligations have been brought to the attention of (and monitored by) almost all institutional mechanisms established under the various international treaties and multilateral environmental agreements (MEAs) applicable to the area. The Danube Delta falls within the scope of four world treaties (the 1971 Ramsar Convention;Footnote ⁶⁹ the World Heritage Convention;Footnote ⁷⁰ the Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 23 June 1979);Footnote ⁷¹ and the Convention on Biological DiversityFootnote ⁷²) and five regional agreements: the Convention on the Conservation of the European Wildlife and Natural Habitats (Bern, 19 September 1979);Footnote ⁷³ the Danube River Protection Convention; the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki, 17 March 1992);Footnote ⁷⁴ as well as the already mentioned Espoo and Aarhus Conventions.Footnote ⁷⁵

In this context, suffice here to recall that two NCPs under the Espoo ConventionFootnote ⁷⁶ were triggered by Romania in 2004 and 2007.Footnote ⁷⁷ The latter complaint was submitted after the carrying out of an inquiry procedure on the request of the same country under Article 3.7 of the Convention.Footnote ⁷⁸ The Inquiry Commission (a body composed of three independent experts appointed by the Parties concerned)Footnote ⁷⁹ unanimously concluded that the BCP was likely to have a significant adverse transboundary impact in Phase I and that an even greater impact was expected in Phase II of the project.Footnote ⁸⁰ In 2008, the Meeting of the Parties (MOP) declared Ukraine non-compliant with its international obligations and decided to issue a caution unless the Government of Ukraine stopped the works, repealed its final decision of 28 December 2007 concerning the BCP and took steps to comply with the relevant provisions of the Espoo Convention and the relevant decisions of the MOP.Footnote ⁸¹ The Ukrainian government was also requested to fully implement the Convention’s provisions through: a revision of its legislative and administrative measures; the adoption of a strategy to be submitted to the Espoo Convention’s Implementation Committee by the end of 2009; and the negotiation of agreements and arrangements with neighboring countries under Article 8 of the Convention.Footnote ⁸²

The above-mentioned caution to the Government of Ukraine became effective on 31 October 2008; nevertheless, no steps (or limited steps) have been taken to bring the project into full compliance with the Convention.Footnote ⁸³ In 2021 the MOP welcomed various positive steps undertaken by Ukraine, including: the adoption of national measures on EIA, aimed at ‘fully align[ing]’ its national legislation with the provisions of the Convention;Footnote ⁸⁴ an assessment of the environmental damage and the preparation of a draft plan of compensatory and mitigatory measures; the development of a new ‘Bystroe Route’ project and its notification to Romania.Footnote ⁸⁵ However, the MOP has expressed deep concern as Ukraine has not yet fulfilled all its obligations under decisions IV/2, V/4, VI/2 and IS/1f.Footnote ⁸⁶ Accordingly, the caution issued in 2008 is still effective.Footnote ⁸⁷ The MOP has also reiterated that the continuation of dredging activities constitutes a further breach of the Convention.Footnote ⁸⁸

An NCP was also triggered under the Aarhus Convention,Footnote ⁸⁹ on the basis of a communication from the publicFootnote ⁹⁰ and a submission by RomaniaFootnote ⁹¹; in 2005 the MOP found Ukraine non-compliant by failing to provide for access to information and public participation under Articles 4 and 6 of the Convention.Footnote ⁹² After three cautions issued by the MOP in 2008, 2011 and 2014 for persistent non-compliance with its decisions,Footnote ⁹³ Ukraine enacted the above-mentioned EIA provisions in 2016.Footnote ⁹⁴ Accordingly, the Compliance Committee, having found that the country had adopted the necessary measures to bring its legislation into compliance with the Convention, concluded that the caution should be lifted and that Ukraine’s special rights and privileges under the Convention should not be suspended.Footnote ⁹⁵

No doubt, a positive result has been achieved. It cannot be overlooked, however, that Ukraine has never abandoned the Bystroe Canal Project and that the case has been pending before the Implementation Committee and the MOP of the Espoo Convention for about eighteen years.

4.4 Concluding Remarks

Both the G/N and the Bystroe Canal cases are particularly complex, as the legal and political issues involved are closely interrelated and inextricably linked. It would also be an overly ambitious task to claim to draw overall conclusions in respect of a hypothetical competition between adjudicative bodies and NCMs from the comparative analysis of only two cases. Accordingly, some general remarks will be tentatively developed strictly on the basis of the findings in the previous sections.

The judgment in the G/N case is rightly considered ‘one of the most interesting judgments ever rendered by the International Court of Justice’,Footnote ¹²⁶ for ‘the outstanding contribution given by the Court to the clarification of core issues of international law’,Footnote ¹²⁷ in particular the law of treaties, the law of international responsibility and their mutual relationship. The same judgment also represented a decisive step in the evolution of international environmental law. The formal recognition of the principle of preventionFootnote ¹²⁸ and the ‘irruption’ of sustainable development in the jurisprudence of the ICJFootnote ¹²⁹ are among the most quoted parts of the judgment. The judgment confirmed the outstanding contribution that may be made to the development of international law through the case law of the Court. It should also be acknowledged that the role of the Court is ‘not that of a ground-breaking body but rather that of a stock-taking institution or, to put [it] in [a] somewhat more colorful term, that of being the gate-keeper and guardian of general international law’.Footnote ¹³⁰

If, however, the same judgment is considered from the perspective of the main function generally ascribed to the Court, the judicial settlement of international disputes, it must be regrettably concluded that this function was not fulfilled. The dispute in the G/N case was decided but not settled by the Court. Obviously, we will never know whether Hungary and Slovakia would have reached an agreement if the Court had provided them with more guidance. However, the ‘condemnation’ of the Parties to negotiation and the absence of supporting indications as to how they might proceed at the legal and technical level contributed to radicalizing the dispute.

More generally, with regard to the integration of the interests of the Parties to the disputes with the interests of other States and of the global environment, the right direction is the one indicated by Judge Weeramantry in his Separate Opinion in the G/N case:

It can hardly be said, however, that substantive progress was made in this direction as a result of the ICJ judgment in the G/N case.Footnote ¹³²

As to the Bystroe Canal case, its main strength lies in the constant promotion of an interactive dialogue and in the effective involvement in the NCMs and in other international monitoring mechanisms of all main stakeholders, including other riparian States, intergovernmental organizations and NGOs. Positive results were also achieved in restoring Ukraine to compliance with some of its international obligations, through substantive reforms within the Ukrainian domestic legal system. In sum, if the issue at hand were considered from the perspective of an abstract competition between international courts and compliance mechanisms, the NCMs would win the game. Innovative mechanisms, like NCPs, appear more effective than traditional tools in managing new causes of conflicts.

A more cautious conclusion might be drawn, however, if attention is focussed on the concrete outcome achieved through the NCMs dealing with the BCP. First, it can hardly be said that legality has been fully restored: Ukraine is still considered to be non-compliant with some of its treaty obligations after decades of discussions and negotiations. Second, and above all, the different approach adopted by the monitoring bodies in assessing Ukraine’s conduct with respect to the implementation of its procedural and substantive obligations may have serious implications for the effectiveness of the entire process.

More generally, if one considers the efficacy of the relevant international procedures in the G/N and the Bystroe Canal cases from the perspective of the protection of the environment as a common concern, there are no real winners but certainly one loser: the ecosystems directly or indirectly affected by the two projects and, notably, the Danube River basin’s and the Danube Delta’s ecosystems.

Against this backdrop, the obvious conclusion that could be drawn would be that very little can be done, within the limits of a decentralized legal order, whatever procedure is adopted to settle an international environmental dispute. The international legal system seems in fact structurally unsuited to cope with the equitable management of shared natural resources, where two fundamental principles, with formal equal rank – territorial sovereignty and sovereign equality – inevitably are in tension or even collide.Footnote ¹³³ It should also be added that the international legal order lacks effective tools against the lack of political will, the persistent unwillingness of States or their dubious, if not bad faith.Footnote ¹³⁴ In the end, it cannot be overlooked that international courts and non-compliance bodies dealing with environmental disputes are required to interpret very vague rules and principles, with serious implications both for international courts and NCMs. The former are composed of legal experts, impartial and independent, but they are obviously reluctant to play a law-making role.Footnote ¹³⁵ The latter are extremely flexible and pragmatic, but their political nature tends to prevail over a legal approach.Footnote ¹³⁶

Nevertheless, a more optimistic outlook can also be suggested. As much of the academic literature has rightly emphasized, both adjudicative bodies and treaty-based institutions are imperfect, but can play a complementary role in the settlement of international environmental disputes and in restoring legality.Footnote ¹³⁷ It should also be added that their contribution can be remarkable, provided that international environmental disputes are understood in correct terms, that is, not because of the ‘environmental’ character of the legal rules at issue, but because they relate to the alleged detrimental impact of certain human activities on natural environmental systems.Footnote ¹³⁸ To this end, some essential conditions will have to be met: all available means under international environmental law must be effectively used; the representation or participation of all key actors in the process must be assured; all possible alternative solutions must be carefully considered with the assistance of independent experts in the evaluation of scientific evidence; and, above all, the public interest in the conservation of the environment as a common concern must be duly taken into account through a genuinely integrated approach.