Article 34. Compliance
The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first meeting, consider and approve cooperative procedures and institutional mechanisms to promote compliance with the provisions of this Protocol and to address cases of non-compliance. These procedures and mechanisms shall include provisions to offer advice or assistance, where appropriate. They shall be separate from, and without prejudice to, the dispute settlement procedures and mechanisms established by Article 27 of the Convention.
720. Article 34 addresses the need to develop a mechanism to promote compliance of Parties with their obligations under the Protocol. It provides that procedures and mechanisms to promote compliance will be approved at the first meeting of the COP/MOP after the Protocol enters into force. In order to prepare for this, discussions on the nature and functioning of the compliance mechanisms were undertaken by the ICCP.
721. The focus of the compliance mechanism foreseen in Article 34 is on the compliance of individual Parties with their obligations under the Protocol. This kind of mechanism supplements the review of the collective implementation of the Protocol by its Parties, which is to be carried out by the COP/MOP (see Articles 29(4), 33 and 35). In principle, such a mechanism may identify instances where Parties have not complied with their obligations. The consequence of a finding of non-compliance will depend upon the type of compliance mechanism that is adopted.
722. Article 34 of the Protocol takes the form of a so-called “enabling provision”. It does not actually establish a compliance mechanism, but provides a basis and framework for its establishment by the COP/MOP. This is a common way of approaching the issue of compliance in recent multilateral environmental agreements.135
723. Although the precise nature of the compliance mechanism to be adopted under the Protocol must await the decision of the COP/ MOP, it may be noted at this stage that the core of a compliance mechanism is often a body to which questions and problems regarding individual compliance can be referred. In general, a Party can refer to the body problems it is facing in trying to comply with its own obligations; Parties may also be able to refer matters pertaining to another Party's compliance; and the Secretariat may refer to the body problems identified in reviewing the reports submitted by Parties. The body considers the matter and issues a recommendation for resolving the problem. Access to the body is generally restricted to Parties to the treaty concerned. See Box 50 below.
Box 50. Core elements and characteristics of existing and emerging compliance mechanisms in multilateral environment agreements136
Compliance procedures and mechanisms adopted, or under development, under other multilateral environment agreements to date tend to include a number of common core elements and characteristics. These include:
Objective: To promote compliance, to address cases of non-compliance, and to provide advice or assistance to Parties to help them comply
Nature: facilitative, non-confrontational and cooperative
Structure: A small standing committee composed of experts in the relevant subject area, to be nominated and elected by the Parties in accordance with the criteria for composition defined by the parties to the agreement (e.g. regional representation). One aspect of this issue is whether members of the committee serve in a personal capacity or as representatives of their respective governments.
Referral of a compliance problem to the mechanism: This may be done by a Party with regard to itself; and in some cases by a Party with regard to another Party, or by the Secretariat or other body of the agreement.
Functions: To examine cases of possible non-compliance, with a view to proposing a solution, and to make recommendations for concrete responses to the Parties concerned or to the Conference of the Parties to the agreement.
Outcome: The Conference of the Parties to the agreement generally decides how to implement the recommendations of the compliance mechanism. In some instances, the Parties concerned have to report back on measures taken in accordance with the recommendations.
The mechanisms adopted under the various other multilateral environment agreements adopt different approaches to some of these elements. After considering the recommendation of the ICCP, the COP/MOP to the Protocol will decide on the approach to be taken in the Protocol's compliance procedures and mechanisms.
724. By requiring that the COP/MOP consider and approve mechanisms and procedures to promote compliance and address cases of noncompliance at its first meeting, Article 34 provides both a definite mandate to the COP/ MOP and a time frame. This makes it one of the more progressive enabling provisions found in recently negotiated multilateral environmental agreements. Article 34 expressly requires that these procedures and mechanisms shall include provisions on advice and assistance. It also expressly states that future compliance provisions should be separate from the dispute settlement procedure established under Article 27 of the CBD (see Box 51), which also applies to the Protocol (see commentary on Article 32). Beyond that, the elements of the mechanism remain open pending its elaboration by the COP/MOP. The ICCP considered the procedures and mechanisms for compliance at its second and third meetings. It prepared a draft text for consideration at the first meeting of the COP/ MOP, although the text included a number of unresolved issues.137
Box 51. Dispute settlement provisions of the CBD
Article 27. Settlement Of Disputes
In the event of a dispute between Contracting Parties concerning the interpretation or application of this Convention, the parties concerned shall seek solution by negotiation.
If the parties concerned cannot reach agreement by negotiation, they may jointly seek the good offices of, or request mediation by, a third party.
When ratifying, accepting, approving or acceding to this Convention, or at any time thereafter, a State or regional economic integration organization may declare in writing to the Depositary that for a dispute not resolved in accordance with paragraph 1 or paragraph 2 above, it accepts one or both of the following means of dispute settlement as compulsory:
(a) Arbitration in accordance with the procedure laid down in Part 1 of Annex II;
(b) Submission of the dispute to the International Court of Justice.
If the parties to the dispute have not, in accordance with paragraph 3 above, accepted the same or any procedure, the dispute shall be submitted to conciliation in accordance with Part 2 of Annex II unless the parties otherwise agree.
The provisions of this Article shall apply with respect to any protocol except as otherwise provided in the protocol concerned.
725. National reports submitted in accordance with Article 33, and the self-monitoring to be carried out by each Party in accordance with that provision, are likely to provide an important basis for the work of a future compliance mechanism.
726. Unlike a dispute settlement procedure, a compliance mechanism is basically a multilateral and non-confrontational instrument. By contrast, a dispute settlement procedure constitutes a legal and institutional framework for solving conflicts or disagreements between two or more Parties. A compliance mechanism can be used as an alternative to, or concurrently with, a dispute settlement procedure. As it is a “softer” mechanism, it is possible that Parties would choose to submit their problem to a compliance mechanism before resorting to dispute settlement under the Protocol/CBD, or to any other relevant dispute settlement procedure. In this sense, a compliance mechanism might help to prevent disputes and thus the need for dispute settlement. It is worth noting that while most multilateral environmental agreements, like the CBD, provide procedures for dispute settlement, these tend to be optional and have not, in practice, been used.
Box 52. Compliance mechanisms under other multilateral environmental agreements
Among the MEAs that are in force, the most mature compliance mechanism is that of the Montreal Protocol on Substances that Deplete the Ozone Layer. It has been operational for several years.
The compliance mechanism of the Montreal Protocol on Substances that Deplete the Ozone Layer
The compliance mechanism was developed on the basis of Article 8 of the Montreal Protocol. It operates independently of, and without prejudice to, the dispute settlement procedure as laid down in Article 11 of the parent treaty to the Protocol, the Vienna Convention for the Protection of the Ozone Layer.
The core of the mechanism is the Implementation Committee, consisting of representatives of 10 Parties, which are elected by the Meeting of the Parties based on equitable geographical distribution. The term of office is two years, with a possibility of serving for two consecutive terms. The Committee meets twice a year. Any Party may, through the Secretariat, bring to the attention of the Committee any reservations regarding another Party's implementation of its obligations under the Protocol, as well as any problems it experiences regarding its own implementation. In addition, the Secretariat may bring to the attention of the Committee cases of possible non-compliance it becomes aware of, in the event that it has not received a satisfactory explanation from the Party concerned.
The Implementation Committee considers the matters submitted to it. It identifies possible causes of the non-compliance. The Party or Parties concerned are entitled to participate in the deliberations of the Committee. Upon the invitation of the Party concerned, the Committee may gather further information on the matter. Based on its considerations, the Committee makes recommendations for the amicable solution of the problem. It submits a report to the Meeting of the Parties, outlining the recommendations made. The report is made publicly available, except where it contains confidential information submitted by a Party. The Party or Parties concerned may not participate in the adoption of the recommendations or in the formulation of the report.
The Party or Parties concerned must subsequently inform the Meeting of the Parties of any measures adopted to improve the situation, in accordance with the recommendations.
The compliance mechanism of the Kyoto Protocol to the United Nations Framework Convention on Climate Change
After several years of work, a compliance mechanism was adopted for the Kyoto Protocol at the 7th meeting of the Conference of the Parties to the Convention in 2001.138 It is the strongest compliance mechanism in any MEA to date, and atypical in incorporating an “enforcement branch”. There is no provision for appeal, except on grounds of procedure.
135 A similar approach was taken in the Montreal Protocol (Article 8), the Climate Change Convention (Article 13), the Kyoto Protocol (Article 18), the Rotterdam Convention (Article 17), and the Stockholm Convention (Article 17).
136 There Are Existing Or Emerging Compliance Regimes Under The Following Multilateral Environmental Agreements: Montreal Protocol, Climate Change Convention, Kyoto Protocol, Basel Convention And Rotterdam Convention, As Well As A Number Of Environmental Agreements Adopted Within The Un/ece Region, Including The Aarhus Convention.
137 ICCP Recommendation 3/2, UNEP/CBD/ICCP/3/10, Annex.
138 See Decision 24/CP7, Procedures and Mechanisms Relating to Compliance under the Kyoto Protocol, FCCC/ CP/2001/13/ Add.3, 21 January 2002. At the time of writing, the compliance mechanism was not yet in effect.
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