The role of facilitative approaches in promoting compliance
Standard environmental texts tend to address the issue of compliance exclusively as a question of enforcing or ensuring compliance with treaty obligations through formal and informal methods for settling disputes and monitoring compliance. With a number of environmental treaties now including a compliance procedure, the increased attention on the role of international compliance in the effective implementation and enforcement of international environmental treaties is unsurprising. As the burgeoning literature underscores, the primary objective in establishing compliance procedures is to provide, within a multilateral context, encouragement to states to comply with their treaty obligations and, in the event of non-compliance, to provide a ‘softer’ system to address non-compliance than that afforded by traditional dispute settlement procedures under general international law. In the climate change context these ‘traditional procedures’ comprise the multilateral consultative process and dispute settlement provisions of the UN Framework Convention on Climate Change (FCCC), which are extended to the Kyoto Protocol (KP) with its additional, bespoke compliance procedures. Facilitating compliance is clearly a part of this process, as the mandate of the KP’s bifurcated compliance body underscores: ‘[t]he objective of the procedures and mechanisms on compliance is to facilitate, promote and enforce compliance with commitments under the Protocol’. Practice under the first-ever compliance mechanism, established under the Montreal Protocol, reveals a particular reliance on facilitative approaches even though the Implementation Committee thereunder is not bifurcated in the manner of the Kyoto Compliance Committee.
In the climate change context, as elsewhere, there has been a tendency to equate compliance facilitation with formal (non-) compliance procedures. For example, in their guide to the climate change regime, Yamin and Depledge explain ‘provisions in the climate regime that facilitate compliance by Parties with their international commitments and, where necessary, correct cases of non-compliance’ exclusively by reference to the dispute settlement, multilateral consultative, and compliance procedures and mechanisms of the FCCC and KP. Matters such as finance, technology, and capacity building are addressed elsewhere as resources relevant for achieving the substantive commitments set out in the FCCC and KP.