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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Compliance Procedure: Barcelona Convention for the Protection of the Mediterranean Sea

Evangelos Raftopoulos

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 30 March 2020

Subject(s):
Environmental disputes — Marine environment, protection

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Introduction

1.  Scope of the Subject

1  This entry will focus on compliance in the framework of the Barcelona Convention system (‘BCS’) as a key controlling aspect of its relational governance. The BCS (Raftopoulos, 1993, 57; Scovazzi, 2012, 96) builds a characteristic conventional environmental regime of international common interest (‘ICI’) (Marine environment protection compliance procedures). As such it consists of a framework convention, the Barcelona Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (1976, as amended on 10 June 1995) and its seven performative Protocols: the Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea (1976, as amended on 10 June 1995, amendment not yet in force) (‘Dumping Protocol’); the Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea (2002, replacing the Protocol Concerning Cooperation in Combating Pollution of the Mediterranean Sea by Oil and Other Harmful Substances in Cases of Emergency (‘Emergency Protocol’) (1976)); the Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-based Sources and Activities (1980, as amended on 7 March 1996) (‘LBS Protocol’); the Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (1995, replacing the Protocol concerning Mediterranean Specially Protected Areas (‘SPA Protocol’) (1982)); the Protocol for the Protection of the Mediterranean Sea Against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil (1994); the Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal (1996); and the Protocol on Integrated Coastal Zone Management (2008). The 22 Contracting Parties to the BCS include the 21 coastal Mediterranean States and the European Union.

2  The BCS, establishing a conventional environmental regime of ICI in processu, is inextricably interwoven with the Mediterranean Action Plan (‘MAP’). MAP, adopted by 16 States bordering the Mediterranean and the European Community in February 1975, was the first-ever plan adopted as a Regional Seas Programme under the United Nations Environment Programme’s (‘UNEP’) umbrella and served as a model. The Regional Seas Programme, launched by UNEP in 1974, was conceived as a global programme implemented through regional action plans which are shaped according to the needs of the region concerned, thus regionalizing the interests of States with respect to protection of the marine environment in an innovative, context-relevant manner (Raftopoulos, 2016). In 1975, MAP provided the pre-negotiation framework for the preparation and development of the first phase of the BCS (1976–95) as a model system for the protection of the Mediterranean marine environment from all sources of pollution. Since then, MAP, functioning as the technical/scientific aspect of the conventional regime of the BCS and fuelling its operation, has effectively facilitated the transition into the second phase of the BCS (1995 to date) as an integrated system for the governance of the Mediterranean’s marine and coastal environment and sustainable development. The MAP’s distinctive technical programmes facilitated this transition, including the Mediterranean Pollution Monitoring and Research Programme ('MED POL Programme'), Blue Plan Programme (‘BP’), Priority Actions Programme (‘PAP’), and its structures (Regional Activity Centres—‘RACs’). In an important development, stipulated in Article 4 (2) of the amended Barcelona Convention, the normative implications of the implementation of MAP in its complementary relationship with the BCS is prescribed, recognizing it as part of the relational basis of the general ‘duty-obligations’ (ingraining both conventional and legislative elements) of the Contracting Parties. Further, the MAP is endowed with an innovative institutional arm: the Mediterranean Commission on Sustainable Development (‘MCSD’) the recommendations of which should be taken fully into account by the Contracting Parties.

3  Within the framework of this conventional environmental regime, compliance was institutionally evolved through two stages, each associated with the negotiated formulation of two distinct compliance control patterns: from the initial pactum de contrahendo obligation pattern of compliance to the institutional management pattern of compliance. This second pattern was progressively developed in two institutional phases: from the generic management of compliance by the Meeting of the Contracting Parties (‘MOP’), as provided in the revised Barcelona Convention, to the more recent establishment of an integrative procedure and compliance mechanism reached by decision of the MOP. Depending on the nature of the conventional environmental regime and the context of its establishment and operation, this process of compliance control development is variably followed by other conventional environmental regimes. Thus, the more recent Minamata Convention on Mercury (2013) directly provides in Article 15 (5) for the establishment of a compliance committee in its institutional structure as a subsidiary organ of the Conference of the Parties (‘COP’), specifying the general conditions of its operation in an open-ended manner by leaving it to the committee ‘to elaborate its rules of procedure’ subject to approval by the COP, and to the COP to ‘adopt further terms of reference for the Committee’. Following a path relative to its nature, Article 15 Paris Convention on Climate Change (2015) stipulates the establishment of a mechanism to facilitate implementation of and promote compliance, which consists of a committee. Article 15 only states the general characteristics of this committee while the modalities and procedures of its operation are provided to be adopted at the first session of its COP (Compliance procedures: Multilateral Environmental Agreements (MEAs)).

2.  Theoretical Approaches

4  The process character of compliance has generally given rise to a variety of theoretical approaches. Of particular interest, due to its pragmatic dimension and its relevance to compliance control in conventional environmental regimes, is the managerial approach to compliance by Chayes and Handler Chayes (1998, at 1). As a process-oriented approach, compliance is the dynamic outcome of a nexus of interactions between parties and lack of compliance is considered not willful but a result of a variety of operational factors, including internal capacity or level of information. In this process, legal norms play an important compliance-contributing role within this nexus of interactions: adherence to them is not the direct result of a coercive action but of an in-depth, pragmatic, and forward-looking cooperation between States associated with the support of the legitimacy of these norms. Similar is the so-called ‘interactional theory’ developed by Brunée and Toope (2001, 186; 2002, 273): it links the interactive approach to ‘stable patterns of expectation’ and considers countermeasures and adjudicative dispute settlement mechanisms not to be a practical option in compliance control because of their coercive, adversarial, and backward-looking character.

5  The relational approach to compliance control as an aspect of the governance of conventional environmental regimes is the centerpiece of its theoretical approach. Such a theoretical approach goes deeper into the nature of compliance, considering it as a creative process in the multilateral governance of ICI, which is constructed through negotiation in treaty relations between and among international participants and by reference to an interactively evolving polycentric public international ordering (Raftopoulos, 2019, 1, 41). All this is particularly reflected in the constituted conventional environmental regime considered as a ‘process’ rather than a ‘state’, comprehensively and contextually (Raftopoulos, 1993, 42). In doing so, it denotes the evident inadequacy of the general theoretical application of the analogy of private law contract to treaties, ie the contract view of treaties, which requires that non-compliance with treaty obligations should be identified with the violation of ‘completed’ discrete contact-like treaty obligations and, as a result, it should be objectively measured as an instantaneous legal consequence associated with terminating or suspending effects. However, compliance is a relational normative activity that is built with the treaty ICI regime. It is primarily geared towards giving effect to the legislative purpose of the treaty ICI regime in time and context (Raftopoulos, 2019, 187). It is inextricably interwoven with the continuous function and development of its governance process as well as with the different levels of compliance performance by the parties. This latter is associated with the contextuality in the proper understanding and compliance control: the need for a focus on the impact of a multiplicity of interrelated factors, such as domestic institutional capacity, inter-sectoral cooperation, party-level economic and social development, public participation in governance, and interactive evaluation of the impact of the treaty regime on the individual party-participation level and of the need for building its effective implementation through a process of identifying its strengths and weaknesses (Follow-up mechanism: Compliance procedures).

6  Apart from contextuality, the relational approach to compliance control also clusters an inner-regime governance dimension referring to the dynamic inter-connection between compliance and accountability, the latter being basically expressed by the procedural obligation of the Contracting Parties to report. The normative quality and scope of compliance control is effectively related to the normative quality and scope of a formalized reporting procedure, ranging from compliance exclusively associated with regime legal instruments to compliance expanded to include regime declarative/decisional instruments, eg declarations, strategies, guidelines, goals, and action plans, specifying their implementation process in an integrated and multi-level manner. Its creative rather than sanctioning character, fundamentally associated with a pragmatically, contextually relevant, increasing effectiveness of the ICI governance of the BCS, denotes its proper understanding, explicitly or implicitly, as ‘relational compliance’ (Raftopoulos, 2016, 159; 2019, 189).

B.  Compliance Control in the First Phase of the Barcelona Convention System (1976–95)

1.  The Pactum de Contrahendo Provision

7  During the first phase of development of the BCS, the approach to compliance control is framework-based as enshrined in a pactum de contrahendo obligation pattern. This entails the duty-obligation of the parties to negotiate a specific issue in good faith and to attain a positive ICI result within the normative, relational, and contextual space of the BCS regime (Raftopoulos, 2019, 189–90). The original Barcelona Convention for the Protection of the Mediterranean Sea against Pollution (1976) in Article 21 contains a simple pactum de contrahendo provision stipulating the duty-obligations of the Contracting Parties to ‘undertake to cooperate in the development of procedures enabling them to control the application of this Convention and the Protocols’. In other words, its terms prescribe the twofold open-textured, collective duty-obligation of the Contracting Parties, granting a high degree of discretion to them for its determination: first to negotiate in good faith, and second to attain a positive, both relationally and contextually, result that will enable them to control compliance with the currently established formal legal instruments of the BCS (Barcelona Convention (1976); Dumping Protocol (1976); Emergency Protocol (1976); LBS Protocol (1980); and SPA Protocol (1982)). Such a limited approach to compliance with the formal legal instruments of the BCS is interrelated with the normative scope of the reporting accountability of the Contracting Parties: as is provided in Article 20 Barcelona Convention, the Contracting Parties are obliged to transmit to the Secretariat of the BCS ‘reports on the measures adopted in the implementation of this Convention and of Protocols to which they are Parties, in such form and at such intervals as the meetings of the Contracting Parties may determine'.

8  On the other hand, it is characteristic that the implementation of this pactum de contrahendo obligation for the establishment and specification of compliance control was not carried out by the Contracting Parties during the first phase of development of the BCS. It remained in a ‘dormant situation’ and was never further discussed or even proposed for some specification in view of its minimalistic formulation. For 20 years until the revision of the BCS in 1995, compliance control was outside the purview of the governance structure and operation of the BCS. This has also been the situation with similar, first-generation conventional environmental regimes for the protection of the marine environment that contained either the same minimalistic pactum de contrahendo standard provision on compliance control (eg Art 23 Abidjan Convention of the West and Central African Region (1981)) or a pactum de contrahendo standard provision on compliance control enriched with specific additional indicative elements (eg ‘detection of violations, using all appropriate and practicable measures of detection and environmental monitoring, including adequate procedures for reporting and accumulation of evidence’, Art XXIV Kuwait Regional Convention (1978); Art XXIII Jeddah Regional Convention of the Red Sea and Gulf of Aden (1982)). There are also those first-generation conventional environmental regimes for the protection of the marine environment which entirely lack such a standard provision (eg Lima Convention of the South-East Pacific (1981); Cartagena de Indias Convention of the Wider Caribbean Region, (1983)).

9  A pactum de contrahendo standard provision on compliance control that clusters some distinctive relational elements is also featured in more recent conventional environmental regime instruments, like the Kyoto Protocol to the United Nations Convention on Climate Change (1998) (Art 18) and the Aarhus Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters (1998) (‘Aarhus Convention’). Characteristically, Article 15 Aarhus Convention sets out the duty-obligation of the Meeting of the Parties to ‘establish, on a consensus basis, optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of this Convention,’ while they will ‘allow for appropriate public involvement and may include the option of considering communications from members of the public on matters related to this Convention.’ Within this framework of the Convention, the First Meeting of the Parties in Lucca, Italy, 21–23 October 2002, following the completion of the relevant negotiation carried out by a mandated ad hoc working group, proceeded to the adoption of Decision I/7, ‘Review of Compliance’, which established the compliance committee and set out its structure and functions.

2.  The Practice of Constructive Compliance

10  The lack of any compliance procedure and mechanism during the First Phase of the BCS, due to the dormant situation of the pactum de contrahendo provision on compliance control, and the low level of adequate implementation of the reporting obligations of the Contracting Parties mark a particularly slippery road towards compliance during this period. The reporting duty-obligation provided in Article 20 Barcelona Convention remains notably weak because no system of integrated and effectively operating reporting is established, there is no reporting format at stake and, as a result, reporting is largely left to the discretionary power of the Contracting Parties. Focused on the, mainly technical, implementation of the reporting obligations stipulated in each Protocol where, admittedly, the importance of the data contained therein should not be overemphasized while, in some cases, the abusive practice of submitting ‘nil reports’ (Raftopoulos, 2014, 138) with no further information was used, the MOPs were only able to make recommendations ‘urging’ the Parties ‘to make every effort’ to report (MOP 8, Annex IV, Recommendation I.B.6, 4–5).

11  On the other hand, it should be stressed that the above described situation did not affect the process of continuous deepening of the ICI governance of the BCS and its evolving specification at all levels including technical, political, legal-institutional, and economic. This process eventually led to the decisive second phase of the BCS where environmental protection and sustainable development of the Mediterranean were integrated and compliance control was effectively institutionalized.

12  Therefore, one should not underestimate the compliance facilitation impact constructively effected by the collective operation of the ICI governance of the BCS on the basis of its relational nature. Thus, a scheduled harmonization of collective conduct was carried out by the adoption of 12 common measures for the implementation of the LBS Protocol by the MOPs (Raftopoulos, 1993, 287–319). Each of these measures set out the standard reporting obligation of the Parties to provide the Secretariat ‘with the fullest information possible’ on relevant legislative, administrative measures, and other specific measures taken as well as relevant monitoring data (eg Measures to Prevent Mercury Pollution, Environmental Quality Criteria for Shellfish Waters, UNEP/MAP, MOP 5 (1987); Measures for Control of Pollution by Cadmium and Cadmium Compounds, Measures for Control of Pollution by Organohalogen Compounds, UNEP/MAP, MOP 6 (1989)). Similar constructive compliance was specifically developed by the adoption of the MOPs of implementing schedules in the form of a calendar of activities or work plan of specific actions for the implementation of the Barcelona Convention and its Protocols, the MAP and Declarations adopted. Further, the very operation of the funding system of the BCS and MAP, namely the Mediterranean Trust Fund (‘MTF’), served as a means for engineering a creatively operating constructive compliance. Establishing a collective funding system on an equitable basis, which is approved by the MOPs for each biennium, the MTF practically engineers constructive compliance. In that vein, the Contracting Parties fund in advance the budget for the implementation of specifically agreed operational activities, as well as the cost of substantive and administrative support activities of the structures of the BCS and MAP. As a result, the likelihood of compliance was practically enhanced in a constructive manner, associated with the relational nature of this conventional environmental regime and its ICI governance based on continuity, purposive implementation, and trust.

C.  Compliance Control in the Second Phase of the Barcelona Convention System (1995–2018): The Two Stages of Evolution

1.  The Stage of Weak Institutionalization: Compliance through the Existing Institutional Structure

13  During the second phase of development of the BCS, the approach to compliance control is reflected in Article 27 amending Article 21 of the original Barcelona Convention. In the framework of this amending provision, a collective structure of compliance control is established attributing to the MOPs the power to assess compliance and manage non-compliance.

14  More specifically, the power of the MOPs to assess compliance is based on the periodical reports to be submitted by the Contracting Parties under Article 26 Barcelona Convention as well as by any other report submitted by the Contracting Parties, and its scope is widened to address not only the Barcelona Convention and Protocols but also the measures and recommendations adopted by the MOPs. This is directly related to the reporting procedure stipulated in Article 26 which also amended Article 20 of the original Barcelona Convention. Article 26 prescribes a mandatory duty-obligation of reporting, setting out that the reports of the Contracting Parties should be composed of two complementary elements of relational governance: a substantive element being the legal, administrative and other measures taken by them for the implementation of the Barcelona Convention, its Protocols and of the recommendations adopted by the MOPS, and a functional element being the effectiveness of the above measures and the problems encountered in the implementation of the instruments mentioned above.

15  The power of the MOPs to manage non-compliance is limited to a recommendation, at their discretion (‘when appropriate’), for the necessary steps ‘to bring about full compliance’ with the Barcelona Convention and its Protocols and ‘promote the implementation’ of the decisions and recommendations (see Art 27). Prescribing the framework of the limited power of the MOPs to manage non-compliance through recommendation, Article 27 not only makes its exercise conditional upon its discretion but retains its formulation at a collective level, avoiding its individuation, and leaves entirely open the determination of the ‘necessary steps’ (Art 27) to be taken, while the role of the MOPs regarding the handling of such recommendation remains unclear.

16  In fact, the most important step in the formulation of the institutional regime of compliance control was the transition towards a relational approach, consistently reflected in the complementary Article 26, dealing with reports, and Article 27, dealing with compliance control: these two Articles establish a relational process rather than a contractual static perception of the legal nature of the conventionally constituted obligations of the Contracting Parties the implementation of which should be collectively and contextually further specified by their decisions and recommendations. Such legislative-like, rather than contractual, understanding of the implementation of conventional obligations serves the relation of the participants in the BCS purposively in terms of protecting and promoting ICI, thus securing the dynamic effectiveness of their relational bond rather than the static fulfillment of a contractual bond. Decisions and recommendations which are instrumental to the purposive implementation of the conventional obligations of the Parties through the Barcelona Convention and its performative seven Protocols clearly fall within the purview of compliance control and they should be appropriately examined and managed in the framework of the continuously revised Reporting Formats.

2.  The Stage of Strong Institutionalization: the Emergence of Compliance Procedure and Mechanism

(a)  The Evolutionary Institutional Steps

17  Before the entry into force of the amended Barcelona Convention on 9 July 2004, the 13th MOP (2003) decided to establish a Working Group of Legal and Technical Experts to ‘elaborate a platform to promote the implementation of and compliance with the Barcelona Convention’ (MOP 13, Annex III, Recommendation I.A.1.4(2a) 2) that was convened, organized, and coordinated by the UNEP/MAP Secretariat of the BCS. It was realized that despite the merits of the amended compliance control provision of the Barcelona Convention, progress demanded, in view of important developments in the international context, making a step forward: to proceed with the establishment of a compliance mechanism in order to achieve a more constructive, efficient, and effective creative compliance procedure. Such important developments included Article 8 on non-compliance of the Montreal Protocol on Substances that Deplete Ozone Layer, (1987), Article 15 on review of compliance of the Aarhus Convention, Article 14bis on review of compliance of the Espoo Convention on Environmental Impact Assessment in a Transboundary Context (1991, as amended in 2004), not to mention the Decision VI/12 ‘Establishment of a mechanism for promoting implementation and compliance’ taken by COP 6 to the Basel Convention that further implements the non-compliance-specific provision of Article 15 (5) (e)). The 14th MOP (2005) decided that the Working Group ‘should develop the compliance mechanism on the basis of the principles, findings, recommendations and deliberations set out’ in its report (MOP 14, Annex III, Recommendation I.A.1 (5) (1) 3). Finally, the 15th MOP (2008), approving the work of the Working Group, adopted ‘the Procedures and Mechanisms on Compliance with Barcelona Convention and its Protocols’ (MOP 15, Decision IG.17/2, para 1) and the setting up of the Compliance Committee ('Committee') in accordance with them, requesting the Committee to consider, inter alia, general compliance issues, draft its own Rules of Procedure for adoption and submit a report on its activities (Decision IG.17/2, paras 2, 5, 7, 8, 9, MOP 15). The Committee emerged as an official subsidiary body of the BCS and its Rules of Procedure were adopted by the 16th MOP (2009) (Decision IG.19/1, Rules of Procedure, MOP 16) and amended by the 18th MOP (2013) (Decision IG.21/1, Amended Rules of Procedure). Overall, the role and functioning of the Committee is governed by the above Decision IG.17/2, as amended by Decisions IG. 20/1 and IG. 21/1, and Decision IG. 19/1, as amended by Decision IG. 21/1 (Decision IG. 17/2 (Consolidated text)).

18  In a nutshell, the Committee is established as a subsidiary organ of the MOP to constructively support compliance and implementation of the BCS. It has an advisory, compliance-building, and pressure-exerting role, with no enforcement capacity. Its non-adversarial, non-judicial, dispute-preventing, facilitating, transparent, and equity-oriented nature shapes the measures that it may take with a view to monitor, ensure and promote compliance with the BCS. These measures are constructive, interactively providing all necessary assistance and advice to help Parties creatively overcome any problems associated with the implementation of the BCS, in a manner that is sensitive to the unique situation of each Contracting Party with particular sensitivity to that of developing countries. Institutionally connected with the Meetings of the Contracting Parties, they both form a scaled, more cohesive and integrated procedural regime of creative compliance serving the ICI implementation and operation of the BCS. Operating without prejudice to the settlement of disputes provision, they generate the procedural space for effectively managing specific situations of non-compliance and general compliance issues thus achieving, as consistently as possible, ICI governance of the BCS. The Committee, elected by MOPs from a list of candidates advanced by the Contracting Parties, considers specific situations of noncompliance by individual Parties or general compliance problems at the request of MOPs, but also ‘any other issues as requested’ by the MOPs (Decision IG.17/2 (Consolidated text), IV 17 (c)). It generates a gradual and sustained creative compliance process at four distinct levels: by providing advice and facilitating assistance; by requesting or assisting the Party concerned to develop an action plan to achieve compliance within an agreed time frame; by inviting this Party to submit progress reports to the Committee on its efforts to comply; and by making recommendations to the MOPs on cases of non-compliance if it considers that such cases should be handled by the MOPs. At the level of MOPs, creative compliance, built on the reports and recommendations of the Committee, the specific situation of the Party concerned and the nature of non-compliance, may be gradually pursued at a higher level by indicatively provided ‘appropriate measures’ (Decision IG.17/2 (Consolidated text) VII 33) by the MOP and the procedure may take a more rigorous and open-ended turn when the situation of non-compliance is ‘serious, ongoing or repeated’ (Decision IG.17/2 (Consolidated text), VII 34). Overall, and in the light of the distinctive region-specific features of the Mediterranean (political, economic, environmental-developmental, legal, social, and cultural) contextualizing the sustainability governance of the region for the protection of the marine and coastal environment and the natural resources, an important step forward is being made with the construction of the above institutionally-scaled compliance control system. And despite its slow and rather hesitant operation in the first years of its establishment as well as the low level of relevant responses of the Contracting Parties, its robust, integrated, and continuously evolving institutional framework has paved the way for more recent developments related to a more informed, more contextually relevant, more relational prone and, in effect, more effective and efficient governance perspective of the BCS.

(b)  The Objective of the Compliance Mechanism

19  The objective of the Compliance Mechanism contains two interrelated elements characterizing its nature: it is a mechanism of creative compliance which facilitates and promotes compliance with the obligations under the Barcelona Convention and its Protocols and, at the same time, a mechanism of contextual and equity-pursuing compliance which in its operation takes into account the specific situation of each Contracting Party, in particular those which are developing countries.

(c)  The Structure of the Compliance Mechanism

20  The Compliance Mechanism is established as a permanent subsidiary body, under the name ‘Compliance Committee’ and consists of seven members of different Contracting Parties, elected by the MOP from a list of candidates nominated by the Contracting Parties, with seven alternate members also elected (see Decision IG.17/2 (Consolidated text), II 2–3). Their election rests on the fulfillment of two basic criteria: their recognized individual competence on a balanced multidisciplinary basis (in the matters related to the BCS and in relevant legal, scientific, technical, socio-economic, or other fields considering a balance of expertise) and their equitable geographic representation. They are nationals of the Contracting Parties; they elect their officers, being a Chairperson and two vice-Chairpersons, on the basis of equitable geographic representation and rotation; and they serve on the Committee for no more than two consecutive terms. The term of office of a member or alternate member starts at the end of an ordinary MOP immediately following their election and runs until the end of the MOP two or four years thereafter as applicable (see Decision IG.17/2 (Consolidated text), II 5–10).

21  Every member serving the Committee takes a written oath declaring that they shall perform their duties objectively, independently, and impartially, acting in the interest of the Barcelona Convention, they shall not disclose any confidential information and they shall disclose any personal interest which may constitute a conflict of interest (Decision IG.21/1, Rules of Procedure, Rule 13).

22  The Coordinating Unit of the BCS serves as the Secretariat of the Committee, arranging and servicing, inter alia, the meetings of the Committee, while, subject to availability of technical and financial means, it may perform any other function assigned to it by the Committee (see Decision IG.17/2 (Consolidated text), XI 38, and Decision IG.21/1, Rules of Procedure, Rule 22).

23  The Committee normally meets twice per biennium, preferably once a year, at the seat of the Secretariat of the BCS, unless it decides otherwise. Additional meetings may be held subject to workload requirements and availability of funds. The meetings of the Committee are open to other Contracting Parties, which are treated as observers, unless the Committee or the Party concerned decides otherwise (see Decision IG.17/2 (Consolidated text), III 12, 13, and Decision IG.21/1, Rules of Procedure, Rule 4). In other words, Committee meetings are open at the discretion of the Committee and the Party concerned. The Committee may also seek expert advice by inviting experts through the Secretariat (Decision IG.21/1, Rules of Procedure, Rule 16 (3)). The detailed function of the Committee is governed by the Rules of Procedure of the Compliance Committee (Decision IG.19/1, Annex I, UNEP(DEP)/MED IG.19/8 Annex II, MOP 16) which are adopted by consensus by the Committee and approved by decision of the MOP. Amendments to these rules follow the same procedure but they are also submitted for consideration and adoption by the Bureau before their endorsement by the MOP (Decision IG.21/1, Rules of Procedure, Rule 32).

(d)  The Role of the Compliance Committee

24  The Committee considers

  1. (a)  specific situations of actual or potential non-compliance by individual Parties with the provisions of the Barcelona Convention and its Protocols;

  2. (b)  at the request of the MOP, general compliance issues, such as recurrent noncompliance problems, including in relation to reporting, taking into account the reports referred to in Article 26 of the Barcelona Convention and any other report submitted by the Parties; and

  3. (c)  any other issues as requested by the MOP (Decision IG.17/2 (Consolidated text), IV 17).

25  In doing so, the Committee should serve ICI: it should act for the dynamic protection and promotion of the purpose and interests of the Barcelona Convention and its Protocols in the process of their continuously evolving operation and implementation requirements. Importantly, the performance of its role, either in specific situations of individual non-compliance or in general compliance issues at the request of the MOPs, is basically related to the performance of the reporting obligation of the Contracting Parties and, especially, to the quality in relation to effectiveness and efficiency of the reporting format. This interplay between Compliance and Reporting has proved to be catalytic for the progress of implementation of the BCS as will be explained later.

26  In practice, the role of the Committee associated with the request of the MOPs to consider general compliance issues, such as recurrent non-compliance problems, is consistently carried out through successive MOPs decisions, especially in view of the lack of referrals from the Parties and the Secretariat to specific situations of non-compliance by individual Parties.

(e)  Procedure for Bringing Compliance Issues

27  There are three distinct procedural processes for bringing compliance issues before the Committee. So far, the three distinct triggers detailed below, ie Party trigger, Secretariat trigger, and Committee trigger have not been activated.

  1. (i)  Submissions by Parties (Party Trigger)

    The Committee considers submissions by a Party in respect of its own actual or potential situation of non-compliance, despite its best endeavours, and by a Party in respect of another Party's situation of non-compliance. In the latter case, the submission requires prior consultation with the Party concerned through the Secretariat and the lapse of a specified period of time of three months or longer if the circumstances of a particular case so require but not later than six months. Such submissions are addressed in writing to the Committee through the Secretariat supported by substantiating information, and the Committee may decide not to proceed if it considers the submission to be anonymous, de minimis, or manifestly ill-founded (Decision IG.17/2 (Consolidated text), V 18–21).

  2. (ii)  Referrals by the Secretariat (Secretariat Trigger)

    The referral by the Secretariat to the Committee is the outcome of its conducting a preliminary compliance-facilitating procedure. Thus, if the Secretariat becomes aware of non-compliance by a Party through the periodic reports of Article 26 of the Barcelona Convention or any other report submitted by the Parties, then it notifies the Party concerned and proceeds to discussions with that Party exploring ways of overcoming the difficulties. If discussions fail within a maximum period of three months, then the Party concerned is obliged to make a submission on the matter to the Committee, and, in the absence of such submission within six months of the date of the initial notification, the Secretariat proceeds to refer the matter to the Committee (Decision IG.17/2 (Consolidated text), V 23).

  3. (iii)  Referral to the Compliance Committee on its Own Initiative (Committee Trigger)

    According to a more recent amendment, the Committee is endowed with the power to proceed on its own initiative. This amendment, initiated by the Committee and endorsed by MOP 18 in 2013, was generated in view of ‘the persistent failure of some Contracting Parties’ and the delay of a number of others to submit their national implementing reports; the need for simplifying the reporting form in order to improve the information provided; and the requirement that the Committee should intervene more quickly and forcefully in response to cases of actual or potential non-compliance (MOP 18 (2013) Report, para 35, 6) thus facilitating a direct link between the Committee and the Contracting Party concerned by the non-compliance case. After examining, ‘on the basis of the biennial activity reports’ or ‘any other relevant information’, the difficulties encountered by a Contracting Party to implement the Barcelona Convention and its Protocols, the Committee may ask this Party to provide all additional information within two months (Decision IG.17/2 (Consolidated text), V 23 bis). Special attention should be paid to the source of communication referring to ‘any other relevant information’. According to the Admissibility Criteria of Relevant Information Sources and Procedure under this case adopted by the Committee, this reference includes all sources of information (Admissibility Criteria, Report of the 13th Meeting of the CC (2017), Annex III, para 2), thus opening the window for the public and observers to submit communications to the Committee. The public and observers for this purpose are defined in Rule 3.12 and Rule 3.14 Rules of Procedure of the Compliance Committee respectively. The admissibility of these communications will be considered by the Committee, after a brief introduction by a designated Rapporteur from among its members, determining, for this purpose, whether the communication is anonymous, de minimis, and manifestly ill-founded and, in addition, whether domestic remedies have been exhausted (Admissibility Criteria, Report of the 13th Meeting of the CC (2017), Annex III, paras 10–13).

28  All submissions under (a) and (b) referrals should be submitted within indicatively provided time frames and may be extended ‘according to the necessities warranted by the circumstances of the matter at hand and in accordance with the Committee's rules of procedure and due process’ (Decision IG.21/1, Rules of Procedure, Rule 25 (4)).

(f)  Specific Functions of the Compliance Committee

29  The Committee performs the following specific functions:

  1. (a)  It undertakes on-site appraisals at the invitation of the Party concerned;

  2. (b)  If it considers it necessary in a particular case, it may ask the Party concerned to participate in the preparation of its findings, measures, and recommendations;

  3. (c)  It asks the Party concerned to provide further information, including an assessment of the reasons why the Party may be unable to fulfill its obligations, and with the consent of the Party concerned, gather information in the territory of that Party, including on-site appraisals;

  4. (d)  It takes into account all available information concerning the issue in question, which is also made equally available to the Party concerned (see Decision IG.17/2 (Consolidated text), V 24–27);

  5. (e)  According to the Admissibility Criteria of Relevant Information Sources and Procedure, it may present the questions raised with the Party concerned, if any, when forwarding the communication, and it may also address any questions to the communicant to clarify the facts of communication (Admissibility Criteria, Report of the 13th Meeting of the CC (2017), Annex III, paras 16–17).

(g)  Procedural Safeguards

30  In the performance of its functions the Committee is guided by the principle of ‘due process’ in order to ensure fairness and transparency (Due process in compliance procedures). Furthermore, the Committee, as well as any Party or others involved in its deliberations, protect the confidentiality of information transmitted in confidence by the Party concerned (Decision IG.17/2 (Consolidated text), V 30). Due process requirements also include notifying the Party concerned of its ‘draft findings, measures and recommendations in writing within two weeks from the date of their completion’ and allowing the Party concerned to comment in writing on them ‘within a period of time determined by the Committee’ (Decision IG.17/2 (Consolidated text), V 29). The fact that the three trigger processes have not yet been activated (see para 27 above) has clearly hampered the further development of concrete procedural safeguards.

(h)  Relationship with the Public

31  It is important to stress that the relationship of the Committee with the public seems to be subservient to the State-centric model, making a minimum relational concession to public participation: it is strictly limited to an access to non-confidential information. Thus, the public has access to the provisional agenda, reports of the meetings, official documents, and other non-confidential information documents (Decision IG.21/1, Rules of Procedure, Rule 15). Confidentiality covers all submissions, comments, and written observations by the Parties concerned, as well as informal consultations conducted by the members of the Committee. Moreover, only the observers, being the organizations referred to in Article 20 of the Barcelona Convention and those included in the list of MAP partners as approved by the MOPs, may participate in the proceedings of the Committee ‘unless the Committee or the Party whose compliance is in question decides otherwise’ (Decision IG.17/2 (Consolidated text), III 13).

32  In principle, meetings of the Committee are open to the observers, but they are subject to the discretion of the Committee or the Party concerned as noted earlier. Unlike other conventional environmental regimes, no other appropriate or more substantial involvement of the public is provided, like the right to attend the meetings of the committee and the right to bring communications before the committee, as is provided in the Bern Convention on the Conservation of European Wildlife and Natural Habitats (1979), the Aarhus Convention, or the Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1999). Neither is the right of the public to comment on nominations to the Committee or its capacity to be indirectly involved in any followup to implement the Committee’s findings at the national level provided nor is it even being discussed within the framework of the compliance mechanism. It is noteworthy that in the framework of the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area conventional regime (‘ACCOBAMS’), an interesting relational development has occurred: the organizations and institutions having the status of ACCOBAMS Partners, in view of their informed relational role, are equipped with the rights a) to elect two members out of the five members of the Follow up Committee, and b) to bring a submission before the committee when they ‘have reservation[s] about a Party’s follow up with its obligations under the Agreement’ (See Rules on the ACCOBAMS Follow-up Procedure, Resolution 5 (4), Annex, Articles 3 (2) and 9).

33  On the other hand, the construction given by the Committee in regard to a referral to the Committee on its own initiative and the sources of communications opens the window for controlled public participation. The Committee developed this kind of reasoning after identifying the continuing low level of the rate of submission, or even the non-submission or the incompleteness of national implementation reports by a number of Contracting Parties. At the same time, it emphasized the importance of information-based approaches for the effective promotion of compliance at the international and the national level recognizing the indispensable need to involve the public in observing compliance (Report of the 13th Meeting of the CC (2017), para 12 (f)). Since such Committee triggering is based, apart from the biennial activity reports, on ‘any other relevant information’ (see item (iii) in para 27 above), the Committee considered that the latter open-ended phrasing should be comprehensive in its coverage so as to include all sources of information. As a result of this insightful construction, any member of the public, ie natural or legal persons, their associations, organizations or groups, and observers, ie the organizations referred to in Article 20 of the Barcelona Convention and those included in the list of MAP partners as approved by the MOPs, may also submit a communication to the Committee in this context. This construction is further supported by the determination of the admissibility criteria (Admissibility Criteria of Relevant Information Sources and Procedure under this referral), recently agreed by the 13th Meeting of the Committee, which provide a step-by-step approach to facilitate the flow of information from the public and observers to the Committee, a framework to facilitate them to address the Committee, an efficient and rational way of handling these communications thus enhancing public participation and access to information without overloading the agenda of the Committee, and a non-binding platform constituting an internal tool for the Committee to use when processing such communications.

34  Thus, these communications should be in writing or in electronic form as concise and concrete as possible, the minimum requirement of their content is prescribed, they should be addressed to the Committee through the UNEP/MAP Coordinating Unit which is the Secretariat and they should be considered at the next meeting of the Committee to decide as to their preliminary admissibility. In determining the admissibility of such communication addressed to it, the Committee will consider whether it is anonymous, de minimis, manifestly ill-founded, or has exhausted domestic remedies—the question of a full exhaustion or a reasonable level of exhaustion of domestic remedies remains to be decided in practice. If the Committee confirms the admissibility of the communication, it will proceed to the examination of the substance of it. Otherwise, the Committee will reverse its preliminary decision. The non-admissibility of the communication by the Committee is final. The decision on admissibility or inadmissibility of these communications will be notified, through the Secretariat, to the Party concerned and the communicant (see Admissibility Criteria, Report of the 13th Meeting of the CC (2017), Annex III, paras 4, 5, 7, 9, 10, 12, 13, 20), Similar modus operandi is prescribed in other conventional environmental regimes, including the Aarhus Convention.

35  The Committee is currently discussing the development of information-based approaches, such as public-awareness and publicity, on the rather debatable view that simply encouraging public involvement, without the attribution of further special public rights, in observing compliance, eg through the media, ‘could be an avenue to promote compliance’ (Report of the 13th Meeting of the CC (2017), para 12 (f)).

(i)  Measures: A Two-Step Approach

36  The Committee, when addressing non-compliance cases, may take one or more of certain prescribed scaling measures building creative compliance:

  1. (a)  Provide advice and facilitate assistance as appropriate;

  2. (b)  Request or assist, as appropriate, the Party concerned to develop an action plan to achieve compliance within a commonly agreed time frame;

  3. (c)  Invite the Party concerned to submit progress reports to the Committee, within the framework of the operation of the above action plan, on its efforts to comply with its obligations;

  4. (d)  To make recommendations to the MOPs on cases of non-compliance, if it considers that such cases should be handled by them, thus launching the second step of compliance measures (Decision IG.17/2 (Consolidated text), VII 32).

37  In deciding on the particular combination of measures to promote creative compliance, the Committee applies two interrelated criteria: the standard equitable criterion which concerns the capacity of a Party as a developing country, and non-compliance quality criteria such as the cause, type, degree, and frequency of non-compliance.

38  When the second step of measures is launched, the MOP may decide on the indicatively provided ‘appropriate measures’ to bring about full compliance with the Barcelona Convention and its Protocols. In this process, the MOP should take into consideration the report and any recommendations of the Committee, the standard equitable criterion (related to the capacity of a Party as a developing country), and non-compliance quality criteria (such as the cause, type, and degree of non-compliance). Such appropriate measures are indicatively prescribed and include:

  1. (a)  Facilitating the implementation of the Committee’s advice and the assistance to an individual Party, including appropriate capacity-building;

  2. (b)  Making recommendations to the Party-concerned;

  3. (c)  Requesting the Party concerned submit progress reports on achievement of compliance;

  4. (d)  Publishing cases of non-compliance (see Decision IG.17/2 (Consolidated text), VII 33).

39  In the event of a serious, ongoing, or repeated situation of non-compliance by a Party, the MOP may appropriately decide:

  1. (a)  To issue a caution;

  2. (b)  To issue a report of non-compliance regarding that Party;

  3. (c)  To consider and undertake any additional action required for achievement of the purposes of the Barcelona Convention and the Protocols (Decision IG.17/2 (Consolidated text), VII 34).

(j)  Decision-making Procedure

40  Each member of the Committee has one vote and the adoption of the findings, measures, and recommendations of the Committee should be based on exhausting all efforts to reach agreement by consensus. If reaching agreement by consensus fails, then, as a last resort, the findings, measures, and recommendations of the Committee are adopted by at least six members present and voting (see Decision IG.21/1, Rules of Procedure, Rules 20, 21).

(k)  Relationship with the Meeting of the Contracting Parties

41  The relationship of the Committee with the MOP develops in three directions: First, the Committee, as a subsidiary organ of the BCS, reports on its activities to the MOPs. Its report on findings, measures, and recommendations is adopted by consensus. If consensus cannot be reached despite all efforts, the Committee, as a last resort, will adopt its findings, measures and recommendations by at least a three-fourths majority of the members present and voting. In this case, the report should reflect the views of all Committee members. As soon as the report is adopted, either by consensus or by at least six members present and voting, the Committee submits it, through the Secretariat, including appropriate recommendations on individual and general issues of non-compliance, to the Parties for consideration at their next Meeting (MOP) (see Decision IG.17/2 (Consolidated text), VI 31 and III 16). Second, the Committee also reports to the MOP on its consultations with compliance committees of other conventional environmental regimes. Third, The MOP regularly reviews the implementation and effectiveness of the Committee and takes appropriate action (see Decision IG.17/2 (Consolidated text), VIII 35).

(l)  Co-operation with other Compliance Committees

42  The Committee may, upon request by the MOP, or directly, solicit specific information from compliance committees of other conventional environmental regimes dealing with comparable matters. In such case, it will report on its consultations to the MOPs (see Decision IG.17/2 (Consolidated text), X 37).

43  In a very recent development, the Committee decided to strengthen cooperation and synergies with the compliance committees of other conventional environmental regimes, including the International Maritime Organization London Dumping Convention (1972) and Protocol (1996), the Basel Convention on Hazardous Wastes (1989), and the General Fisheries Commission for the Mediterranean, by sharing mutual experience and best practices (Report of the 14th Meeting of the CC (2018), para 5).

(m)  Relationship with the Settlement of Disputes Procedure

44  It is provided that the operation of these procedures and mechanisms is without prejudice to the settlement of disputes regime prescribed in Article 28 Barcelona Convention (Decision IG.17/2 (Consolidated text), IX 36). This patterned form of provision is incorporated in the majority of non-compliance procedures of conventional environmental regimes. Nevertheless, the relationship between these two different procedural systems, ie a non-adversarial, facilitative procedure vis-à-vis a confrontational procedure, remains obscure and it has not been discussed so far, although both of them are geared, from different path procedures, towards an effective ICI solution. Article 28 is the re-numbered Article 22 of the original Barcelona Convention and has remained unchanged since its inception. It sets out a standard, open-ended pattern of dispute settlement. It provides that in case of a dispute as to interpretation and application of the Barcelona Convention and its Protocols, the Parties should seek a settlement ‘through negotiation or any other peaceful means of their own choice’ and, if no settlement has been reached, their dispute should be submitted by common agreement to arbitration under the conditions laid down in Annex A.

45  Article 28 has never been invoked by any Contracting Party and it was out of the purview of the renegotiation process that generated the second phase of the BCS. This stems from the relational character of compliance control as an aspect of the ICI governance of conventional environmental regimes, and the concomitant need to internalize potential individual conflicts in terms of their inter-connections: by balancing individual compliance control with an integrated protection and promotion of ICI in the framework of governance of a conventional regime where the management of non-compliance is related to the effective preservation of the conventional relation, the contextual harmonization of the emerging conflicts, and the development of its specification and expansion though continuous consensus-building.

46  It is worth noting that the inter-State-centered pattern of the settlement of disputes procedure of Article 28 of the Barcelona Convention is strongly relationalized in the framework of the LBS Protocol (1980). Taking into account Article 28 of the Barcelona Convention, Article 12 of this Protocol builds on the relational discretion of the Parties concerned, providing that, in the case of likelihood of transboundary pollution from land-based sources, they may not only ‘enter into consultation with a view to seeking a satisfactory solution’ but also place the matter on the agenda of the next MOP ‘at the request of any of the Parties concerned’, so that the MOP ‘may make recommendations with a view to seeking a satisfactory solution’.

D.  Compliance and Accountability: Their Crucial Interplay for Relational Compliance Control

47  Article 26 Barcelona Convention sets out the standard accountability pattern of the Contracting Parties providing their duty-obligation to report regularly on the implementation of the Barcelona Convention and its Protocols and of recommendations adopted by MOPs. Composed of the two complementary elements of relational governance, the substantive and the functional element, the duty-obligation to report produces its normative effects through the standardization of its form in a national reporting format, that is built up collectively: by consensus through negotiation within the appropriate ad hoc negotiating body, ie the Working Group on Reporting, and adopted by decision of the MOP 15 (Decision IG. 17/3, Annex V). The standardization of the format of the national reports was attained in stages by collective negotiation during seven Meetings of the Working Group on Reporting from 2002 to 2007, convened and coordinated by the UNEP/MAP Secretariat as requested by recommendations of MOP 12, MOP 13, and MOP14. It maintains a contextual harmonization, meaning the appropriate harmonization with the reporting systems of other relevant conventional environmental regimes, especially the UN Convention on Biological Diversity (1992), as well as with relevant European legislation. It specifies, in a uniform and comprehensive manner, the criteria and indicators for assessing the quality of a Party implementation of the Convention, its Protocols and recommendations/decisions adopted by the MOPs. At the same time, it offers a useful tool for each Party to make a realistic self-assessment of its capacity to implement the BCS. More directly, it provides the basis for the exercise of the power of the Committee to proceed to the consideration of specific situations of actual or potential non-compliance by individual Parties or, at the request of the MOP, of general compliance issues in relation to reporting.

48  The 15th MOP (2008) adopted the reporting format for the implementation of the Barcelona Convention and Protocols. According to the overall reporting rates for the years 2008–15, there is an upward trend in the submission of reports by the 22 Contracting Parties, and this process was facilitated by the assistance provided by the Secretariat. Thus, for the bienniums 2008–9 and 2010–11, 15 Contracting Parties have fulfilled their reporting obligation, while, for the bienniums 2012–13 and 2014–15, the number has increased to 19.

49  The 19th MOP (2016) decided to request a simplified and more practical draft of the report form. In doing so, it adopted the recommendations of the Committee that rest on two interrelated premises. First, the Committee’s particular concern related to the persistent failure of some Contracting Parties to submit their national reports, in spite of repeated reminders, thus undermining efforts ‘to assess overall progress and identify difficulties’ and constituting ‘cases of serious and repeated non-compliance’. Second, the Committee recognized the complexity and repetitiveness of the reporting form and specifically recommended the simplification of the form, its amendment ‘to solicit explanations for negative responses and to improve the information provided, especially in the sections on resource allocation and effectiveness’, and the drafting of an explanatory note containing guidelines on how to complete the form.

50  Following decisions by MOP 19, the draft of the Revised Reporting Format was prepared by the Secretariat in close coordination with MAP components, whereas the Committee contributed to its further refined version providing its comments inter-sessionally. At its 13th Meeting, the Committee also undertook to develop an Explanatory Note for the Revised Reporting Format that was included in its Programme of Work for the biennium 2018–19 and should be taken forward once the Revised Reporting Format is adopted by MOP 20 (see Decision IG. 23/2, Annex I, sec 2 (9), and Annex II.7).

51  MOP 20 in 2017 adopted the Revised Reporting Format and urged Contracting Parties to use it for their national implementation reports ‘starting with those for the biennium 2016–2017’. It also requested the Secretariat, on the one hand, ‘to ensure that the revised reporting format is accessible on the online Barcelona Convention Reporting System’ and, on the other hand, to submit to each MOP ‘a report on the general advances made in the region’, based on ‘an analysis of the information contained in the national reports’ along with ‘proposals for further measures, as necessary’ (MOP 20, Decision IG.23/1, paras 1–4).

52  The Revised Reporting Format provides a simplified and a more explanatory pattern. It simplifies its quantitative sections, it is less standardized in details with no specified indicators, thus giving Contracting Parties further room to explain difficulties and challenges faced when implementing the Barcelona Convention and its Protocols, and it distinguishes between mandatory reporting and optional reporting when assessing compliance. It is streamlined with global developments as reflected in the International Maritime Organization London Dumping Convention (1972) and Protocol (1996) and the Basel Convention on Hazardous Wastes (1989).

53  At the core of the relational compliance control lies the determination of the nature of the nexus between compliance control and obligation of the Contracting Parties. The restrictive—and strictly positivist—approach connecting compliance control with the formal legal, contract-like, obligations of the Contracting Parties is clearly inadequate in view of the more relational approach well-reflected in the formulation of the text of the provisions of the Barcelona Convention. Thus, Article 4 Barcelona Convention on the General Obligations of the Contracting Parties institutionalizes the linkage of the interactive process between the Barcelona Convention and its Protocols and the MAP providing, inter alia, that ‘the Contracting Parties pledge themselves to take appropriate measures to implement the Mediterranean Action Plan’ and their obligation to ‘take fully into account the recommendations of the Mediterranean Commission on Sustainable Development established within the framework of the Mediterranean Action Plan’ (Art 4.2). As explained earlier, the reporting obligation of the Contracting Parties under Article 26 refers to their implementation of the ‘Convention, the Protocols and of the recommendations adopted in their meetings’ whereas the assessment compliance control by the MOPs under Article 27 covers ‘compliance with the Convention and the Protocols as well as the measures and recommendations’ while its recommendations aim to ‘bring about full compliance with the Convention and the Protocols and promote the implementation of decisions and recommendations’.

54  Obviously, the obligations of the Contracting Parties should be conceived and understood dynamically, as normative activities in interactive consistency with related declarative/decisional instruments serving a relationship of ICI: the protection of the marine environment and natural resources of the Mediterranean contributing to sustainability. They are not completed legal obligations like private law contractual obligations, but relational duties-obligations involving a process of their negotiated implementative specification through collective decisional instruments that are essential for promoting their ICI effectiveness. In fact, creative compliance is connected with the implementation of relational duties-obligations, that is, an integrated, process-related, context-dependent, purposive and ICI-effecting conceptualization and understanding of their normative function.

55  At its 13th Meeting, the Committee decided to move more decisively towards the clarification of the scope of relational compliance. Starting from the standpoint that all decisions adopted by the Meetings of the Contracting Parties ‘have a normative nature and as such are mandatory’ (Report of the 13th Meeting of the CC (2017), para 19), it proceeded to consider the legal nature of the main obligations contained in COP (MOP) thematic decisions, such as Decisions on Regional Action Plans the implementation of which play a key role and are of particular relevance within the framework of the Revised Reporting Format. In this context, the Committee included in its Programme of Work for the biennium 2018–19 the analysis, within the framework of the Revised Reporting Format, of the legal nature of the main obligations of COP (MOP) thematic decisions for the purpose of assessing compliance.

56  In light of the relational approach to the nexus between compliance control and obligation of the Contracting Parties enshrined in the Barcelona Convention (see para 53 above), it is an open question how the Committee will effectively deal with the dynamic scope of relational compliance and its linkage to the reporting obligation. Certainly, important strategic decisions of the MOPs having a catalytic effect on the promotion of the BCS, such as the Mediterranean Strategy for Sustainable Development (2016–25) adopted by the Decision IG. 22/2 of the 19th MOP, should also be of particular relevance to the Revised Reporting Format. Providing a strategic policy framework for sustainability in the Mediterranean and a regional response to the 2030 Agenda for Sustainable Development and the implementation of the Sustainable Developments Goals (‘SDGs’), the promotion of its strategic directions should be considered as a part of the relational compliance of the Contracting Parties.

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  • EA Kirk, 'Noncompliance and the Development of Regimes Addressing Marine Pollution from Land-Based Activities' (2008) 39 Ocean Development & International Law 235–56.

  • I Papanicolopulu, 'Procedures and Mechanisms on Compliance under the 1976/1995 Barcelona Convention on the Protection of the Mediterranean Sea and its Protocols' in T Treves, L Pineschi, A Tanzi, C Pitea, C Ragni, and FR Jacur (eds), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (Asser Press 2009) 155–68.

  • G Loibl, ‘Compliance Procedures and Mechanisms’ in M Fitzmaurice, DM Ong, and P Merkouris (eds), Research Handbook in International Environmental Law (Edward Elgar 2010) 426–49.

  • J Brunée and SJ Toope, Interactional International Law (Cambridge University Press 2011).

  • J E Viñuales, ‘Managing Abidance by Standards for the Protection of the Environment’ in Antonio Cassese (ed), Realizing Utopia – The Future of International Law (Oxford University Press 2012) 326–40.

  • J Harrison, Saving the Oceans through Law: The International Legal Framework for the Protection of the Marine Environment (OUP 2017).

Cited Documents