Climate Change Compliance Procedures
- Climate change — Compliance monitoring in international organizations — Amicus curiae — International courts and tribunals, procedure — Compliance with international decisions
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.
1 Since the 1970s, international environmental law has grown significantly, but in a fragmented manner (Biermann and others, 2009, 14). Different problems have been subject to specific negotiations that generally led to the adoption of a treaty regulating a more or less broad issue, and establishing ad hoc institutions to allow its operation (Environment, International Protection).
2 The structure is generally the same among multilateral environmental agreements (‘MEAs’) (Environment, Multilateral Agreements): a secretariat assuming administrative tasks, a Conference (Meeting) of States Parties exercising the decision-making power, and various organs with restricted membership, mandate, and/or decision-making power (including mechanisms for scientific, technological, financial, and/or compliance purposes). The overall structure is designated as a ‘regime’ (Krasner, 1983, vii) and the decisions adopted by these institutions and organs may be considered as secondary law of each regime (Brunée, 2002, 1; Cardesa-Salzmann, 2012, 103). For instance, the decision of the Conference of the Parties (‘COP’) to the United Nations Framework Convention on Climate Change (‘UNFCCC’), adopting the Paris Agreement and paving the way for its operationalization (UNFCCC COP Decision 1/CP.21), may be considered as secondary law of the climate regime.
3 This issue-based approach to environmental problems, as well as this fine-tuned institutional structure, permits normative and procedural innovations in order to take due account of the specific interests at stake and challenges to overcome (Maljean-Dubois and Richard, 2004, 30; Environmental Compliance Control). However, it also entails a greater risk of inconsistencies in the international order, and ultimately concerns about the effectiveness of international environmental law.
4 Yet, compliance procedures in multilateral environmental agreements (Compliance Procedures: Multilateral Environmental Agreements (MEAs)) have been established, precisely in order to foster the effectiveness of the regime to which they relate. These compliance procedures are based on reporting systems, but some are more intrusive by relying also on independent desk and/or field reviews. They may result in non-compliance reports recommending or adopting measures of a varied nature, such as financial assistance or suspension of benefits derived from the MEA. In any case, they are conceived as softer than international dispute settlement mechanisms addressing an alleged breach to a treaty according to States’ responsibility principles (Koskenniemi, 1993, 123). Compliance procedures aim for a return to compliance and not to solve a dispute that may result in ex post reparation. This different spirit is also reflected in the compliance rules of procedures that generally use a politically neutral vocabulary (for example a dispute becomes a ‘question of implementation’, and a breach of the treaty is designated as a ‘case of non-compliance’).
5 Indeed, States are reluctant to adopt an adversarial approach regarding non-compliance with environmental treaties addressing the global commons (Brown-Weiss and Jacobson, 1998; Young, 1999). Furthermore, in this field, non-compliance is often more attributable to lack of capacity than lack of political will (Chayes and Chayes, 1995, 14). When the latter occurs, the denunciation of such a treaty is always possible, as shown by Canada, under the Harper administration, regarding the Kyoto Protocol to the United Nations Framework Convention on Climate Change (‘Kyoto Protocol’), and by the United States, under the Trump administration, regarding the Paris Agreement. In such instances, recourse to traditional international dispute settlement mechanisms and to international environmental law principles may—in theory—be useful (Voigt, The Potential Roles of the ICJ in Climate Change Related Claims 2016, 152), but they are not likely to manage compliance with the treaty provisions as the special procedures of MEAs could, because only these ad hoc mechanisms may fully rely on the overall regime, including financial and/or technical means of implementation.
6 In this regard, the climate regime historically stands out among MEAs by opting for a strict control of compliance with the Kyoto Protocol provisions (Lefeber and Oberthür, 2012, 77). The logic of the Paris Agreement is, however, very different from the one pursued under the Kyoto Protocol. The Paris Agreement leaves important discretion to the Parties to prepare, communicate, and maintain nationally determined contributions (‘NDCs’) (Arts 4 (2), 13 (7), 13 (8) Paris Agreement) and reaches universal participation for responding to climate change through a broad range of actions (including mitigation, adaptation, loss and damage, finance, technology, and capacity-building). By contrast, the scope of the Kyoto Protocol was restricted to mitigation and placed the core legal obligations on developed countries (Annex I UNFCCC).
7 Indeed, while international negotiations on the ‘post-2012’ climate regime (ie after the Kyoto Protocol’s first period of commitment) insisted, from the very beginning, on the need to extend climate action, many Parties to the UNFCCC also emphasized the need for associated transparency. Even if the experience under the Kyoto Protocol was a basis of negotiation, it quickly appeared that the duplication of its general scheme and/or sophisticated overall system of control (including its Compliance Mechanism referred to in Art 18) would not be a realistic option. Following the 2009 Copenhagen Conference (COP 15), where dissensions among Parties prevented a detailed and widely endorsed agreement for the future of climate multilateral cooperation, the COP progressively established a so-called ‘monitoring, reporting and verification system’ (‘MRV’) to review the implementation of the Cancun Agreements, which were adopted during the next plenary meeting (COP 16) in the form of a COP decision under the UNFCCC (UNFCCC COP Decision 1/CP.16, ‘The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’, 2010). This MRV system, operationalized also through a set of COP decisions, aimed at increasing transparency on climate action from all Parties to the UNFCCC. It has been experimented alongside the Kyoto Protocol compliance procedure given the delay between the end of the first period of commitment and the corresponding assessment of compliance. As such, these intermediary procedures may have contributed to building the consensus that led to the adoption of the Paris Agreement at the COP 21 in 2015, but also its entry into force no later than 2016. At least, they were taken into consideration for shaping several provisions of the Paris Agreement.
8 The ‘enhanced transparency framework’, referred to in Article 13 Paris Agreement, follows the line of the Cancún Agreements’ MRV system (Tabau, 2016, 30). An additional ‘mechanism to facilitate implementation and promote compliance’ (‘Paris Agreement Implementation and Compliance Mechanism’) is referred to in Article 15 (1) Paris Agreement. By contrast, the COP was never able to adopt the ‘multilateral consultative process’ (Art 13 UNFCCC) that could have completed the Cancún Agreements’ MRV system.
9 The Paris Agreement does not solve the cause of disagreement that hampered the adoption of the draft decision on this multilateral consultative process (UNFCCC COP Decision 10/CP.4), that is to say the composition of the related committee. Indeed, the Paris Agreement only establishes that: ‘[t]he mechanism referred to in paragraph 1 of this Article 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. The committee shall pay particular attention to the respective national capabilities and circumstances of Parties’ (at Art 15 (2)). However, UNFCCC COP Decision 1/CP.21 details that the committee: ‘shall consist of 12 members with recognized competence in relevant scientific, technical, socioeconomic or legal fields, to be elected by the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement on the basis of equitable geographical representation, with two members each from the five regional groups of the United Nations and one member each from the small island developing States and the least developed countries, while taking into account the goal of gender balance’ (at para 102).
10 Many aspects of the modalities and procedures for the effective operation of the Implementation and Compliance Committee have been negotiated during three more years (Art 15 (3) Paris Agreement; UNFCCC COP Decision 1/CP.21, para 103) and adopted by the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (‘CMA’) at its first session, held in Katowice (Poland) at the end of 2018 (Paris Agreement CMA Decision 20/CMA.1, Annex). The Paris Agreement Committee members are to be elected by the CMA at its next annual meeting (‘CMA 2’), planned for December 2019. They are to start their mandate by developing rules of procedure for consideration and adoption at CMA 3, in November 2020. As this lengthy process of multilateral negotiation started more than a decade ago (COP 13 in 2007), and given the urgency to globally address the issue of climate change, it is necessary to determine whether the new climate change regime compliance procedures have been tailored to optimize their performance.
11 In order to assess the extent to which the climate regime may reconcile the adaptiveness of compliance procedures (sec B below) and legal certainty through compliance procedures (sec C below), it is useful to refer to the past experience of the Kyoto Protocol Compliance Mechanism, but also occasionally of other MEAs (for a detailed analysis, see Ozone Layer Protection Compliance Procedure; Atmospheric Emissions Controls Compliance Procedures), as it allows the appreciation of the consensus reached regarding the Paris Agreement Implementation and Compliance Mechanism, in order to evaluate procedural options that have been considered and finally adopted.
B. Adapting Compliance Procedures to the Climate Change Regime
12 Environmental regimes are generally initiated by a framework convention, then specified or enhanced by additional agreements, which may also take the form of a treaty. This way, the ‘climate regime’ is now composed of the UNFCCC of 1992, the Kyoto Protocol of 1997, the Paris Agreement of 2015, but also of varied bodies established by these treaties, as well as the secondary law produced. Therefore, international climate primary law includes provisions establishing the commitments of the Parties, but also provisions directed towards the climate regime itself. Compliance procedures are an example of these latter kind of rules (sec B.2 below), but more broadly speaking, these compliance procedures are conceived in order to be adapted as closely as possible to the specific agreement to which they relate, itself built according to the specific (political, economic, scientific, technological, etc) features of the issue addressed (sec B.1 below).
1. Adaptation to the Normative Architecture of the Related Agreement
13 As reflected in the history of the climate regime, a key aspect of compliance procedures’ design is their logical relationship with the nature of the obligations contained in the related MEA. Indeed, the climate regime has to be considered from the point of view of the Parties to analyse how the specific nature of their commitments, agreed for in climate primary law, impact climate compliance procedures, elaborated through secondary law, with respect to their functions (sec B.1.a below) and to their correlative scope of competence (sec B.1.b below).
(a) The Impact of Commitments on the Functions of Compliance Procedures
14 The Kyoto Protocol Compliance Mechanism has been established ‘to determine and to address cases of non-compliance with the provisions of this Protocol’ (Art 18 Kyoto Protocol). The Conference of the Parties serving as the meeting of the Parties (‘CMP’) to the Kyoto Protocol further agreed that the objective followed is ‘to facilitate, promote and enforce compliance with the commitments under the Protocol’ (Kyoto Protocol CMP Decision 27/CMP.1, Annex, Section I). Therefore, the aim pursued is the effective implementation of the Kyoto Protocol. The institution is primarily preventive but also includes a reactive dimension, directed towards return to compliance. The preventive logic may be incentive or dissuasive, and the reactive logic may range from assistance to sanction. All these dimensions appear in the tasks assigned to the Kyoto Protocol Compliance Committee. More precisely, the Facilitative Branch is vested with an early warning function, dealing with potential cases of non-compliance, with the aim of facilitating implementation, but that could at a later stage fall into the competence of the Enforcement Branch, mandated to determine cases of noncompliance, and more directed towards a prompt return to compliance, if necessary by sanctioning non-compliance (Kyoto Protocol CMP Decision 27/CMP.1, Annex, Sections IV (3)–(5) and V (4)–(6)).
15 In practice, the Facilitative Branch has been almost at a standstill, as it has never adopted any final decision (Kyoto Protocol Compliance Committee, Experience of the Facilitative branch in Providing Advice and Facilitation to Parties in Implementing the Kyoto Protocol, 2017). The Enforcement Branch has been more active, but it has only partially exercised its mandate. Indeed, it was able to address ‘questions of implementation’ regarding compliance with procedural commitments, but not with regard to substantive ones. Therefore, did the Kyoto Protocol Compliance Mechanism fulfil its overall assigned objective of ‘promoting’ compliance? In some respects, it is possible to consider that it contributed to compliance with individual greenhouse gas (‘GHG’) reduction targets, precisely because no question of implementation was directed to the Enforcement Branch therein. Another way of thinking may, however, emphasize that the Compliance Committee was helpless in avoiding Canada’s withdrawal from the Kyoto Protocol (Jacur, 2016, 248), which led to the progressive reshaping of the normative architecture of the climate regime and to different kinds of commitments under the Paris Agreement.
16 Nevertheless, the Paris Agreement Implementation and Compliance Mechanism also aims at ‘facilitating implementation and promoting compliance’ with the provisions of the Paris Agreement. The main difference with the Kyoto Protocol Compliance Mechanism relates, therefore, to the enforcement dimension of the compliance procedures. The Paris Agreement even insists on the fact that the new Committee ‘is facilitative in nature’ and shall function in a manner that is ‘non-punitive’ (at Art 15 (2)). Various interpretations of these indications may be advocated but, in any case, facilitating implementation and promoting compliance will no longer rely on dissuasion or sanctions, but rather on persuasion and support.
17 In this context, whether the facilitative function of the Paris Agreement Implementation and Compliance Committee should be separated from its promoting function, according to a distinction between implementation and compliance, or whether they are part of the same continuum has been debated. In this respect, some authors advocated for distinguishing between binding (‘shall’) provisions, which may be addressed through the ‘promotion of compliance’ viewpoint, whereas nonbinding (‘should’) provisions, would be addressed through the facilitation angle (Voigt, The Compliance and Implementation Mechanism of the Paris Agreement 2016, 161).
18 However, what distinguishes the Paris Agreement’s binding and non-binding provisions is not always easy to establish (Zahar, 2017, 69). In addition, it is not the only distinction that can be made among the Paris Agreement provisions. Indeed, commitments may also be classified according to their individual or collective, procedural or substantive, assessable or imprecise character. Indeed, broadly speaking, the Paris Agreement has been qualified as a ‘hybrid agreement’ (Friedrich, 2017, 320; Bodle and Oberthür, 2017, 91). For instance, it contains procedural commitments more internationally framed than substantive commitments that leave wide discretion to the Parties. Some of those commitments are (at least literally) legally binding, but promoting compliance will not imply the same means in each case. The promotion of compliance with the commitment to regularly submit information on the Paris Agreement’s implementation will be based on a previous expert-based and quasi-automatic assessment of compliance, whereas the promotion of compliance with the commitment to provide support will be more difficult and subjective, as only a vague and/or collective provision has been adopted in that respect. Therefore, the questions of implementation in the latter case may be better directed to the ‘facilitative’ dimension of the Paris Agreement Implementation and Compliance Mechanism, while it may be considered as a binding provision of the Paris Agreement.
19 The qualification of the wide spectrum of commitments contained in the Paris Agreement is furthermore a sensitive issue, as proved by the precision in the modalities and procedures that ‘nothing in the work of the Committee may change the legal character of the provisions of the Paris Agreement’ (Paris Agreement CMA Decision 20/CMA.1, Annex, Section IV (19) (a)). This explains why the modalities and procedures adopted insist on the case-by-case approach that will be followed by the Committee in identifying the appropriate measures, findings, or recommendations (Paris Agreement CMA Decision 20/CMA.1, Annex, Section IV). If the functions of the Paris Agreement Implementation and Compliance Mechanism had been distinguished, through a dual structure, the variable intensity that would have been attributed to each function could indeed have had some consequences on the scope of competence of each branch, but also on outputs. Yet, it is in the latter respect that differentiating between a ‘facilitative’ function and a ‘promoting’ function, in a Committee globally ‘facilitative in nature’ and ‘non-punitive’, would have been challenging.
(b) The Impact of Commitments on the Scope of Compliance Procedures
20 Neither the Kyoto Protocol, nor the Paris Agreement provide for restrictions regarding the scope of competence for their compliance mechanisms, as they both refer broadly to their respective provisions. However, Kyoto Protocol CMP Decision 27/CMP.1 distinguishes between the scope of competence of each Branch of the Kyoto Protocol Compliance Committee. Indeed the Enforcement Branch’s jurisdiction is narrower, ratione materiae and ratione personae, than that of the Facilitative Branch, but the scope of competence of the Facilitative Branch covers that of the Enforcement Branch. More precisely, the Facilitative Branch may determine questions of implementation regarding all the provisions of the Kyoto Protocol, while the Enforcement Branch has three main competences: assessing the fulfilment of Annex I countries reporting commitment, of eligibility requirements for Annex I countries to participate in the flexibility mechanisms, and of Annex I countries periodic individual GHG emission reduction targets.
21 This material scope of jurisdiction of the Enforcement Branch corresponds to the specific needs created by the Kyoto Protocol flexibility mechanisms (Joint Implementation; Emissions Trading; Clean Development Mechanism) in terms of regulation and control (Maljean-Dubois and Tabau, 2012, 317). However, not all Kyoto Protocol provisions relate to these carbon market mechanisms, and it was therefore unnecessary to assess their implementation through such a judicially coloured branch. Therefore, only the Facilitative Branch may consider the effective implementation of provisions relating to adaptation, capacity building, technology transfer, or support. The Enforcement Branch may nevertheless address the respect to which their implementation has been reported by Annex I Parties.
22 The Enforcement Branch also has a narrower ratione personae competence than the Facilitative Branch, as the former is not mandated to address questions of implementation concerning Non-Annex I Parties. This restriction is justified by the non-binding character of their commitments (mainly referred to in Art 10 Kyoto Protocol), that calls more for facilitative measures, in the form of technical or financial support, than for a declaration of non-compliance and for sanctions. Therefore, the binary distinction between developed (Annex I) and developing (Non-Annex I) Parties, that structures the commitments agreed for in the Kyoto Protocol, appears also in the dual structure of the Kyoto Protocol Compliance Committee.
23 The two branches of the Kyoto Protocol Compliance Committee are nevertheless not strictly distinguishing between Annex I and Non-Annex I Parties, as the Facilitative Branch may address questions concerning both categories of countries. That is why a ‘Bureau’ has been established with the mandate of directing questions of implementation submitted to the Committee to the correct Branch, according to their respective mandate. This decision does not, however, constitute a preliminary examination, as it is based on the irrefutable presumption that one of the two branches is competent. This referral will thus be then confirmed or rejected by the seized branch. Kyoto Protocol CMP Decision 27/CMP.1 even provides that ‘[w]here appropriate, the enforcement branch may, at any time, refer a question of implementation to the facilitative branch for consideration’ (at Annex, Section X (1)). However, this has never happened in practice. Furthermore, the Facilitative Branch cannot redirect a question to the Enforcement Branch. The Bureau therefore plays a more decisive role when it refers questions to the Facilitative Branch, and thus it has contributed, in practice, to the low number of Facilitative Branch recorded cases compared to the Enforcement Branch.
24 This choice may, nevertheless, be justified by the ‘learning by doing’ dynamic that characterizes the elaboration of international environmental law, and the construction of the climate regime in particular. The Kyoto Protocol was conceived as a treaty functioning through successive phases of implementation, implying the regular renegotiation of individual GHG mitigation targets. This approach has allowed a progressive evolution of the treaty and the testing of a ‘top-down’ approach. However, this has turned out, in practice, to be a weakness of the Kyoto Protocol and consequently of its Compliance Mechanism. Indeed, the withdrawal of Canada from the Kyoto Protocol prevented the experimentation, in practice, of the effect of sanctions between two successive commitment periods and it discredited, in some regards, the Kyoto Protocol Compliance procedure as such. Actually, it contributed greatly to the design of the Paris Agreement, which learnt lessons from the past by extending the perimeter of the climate regime without underestimating the political context.
25 Categories of countries did not totally disappear in the new agreement but they are no longer binary or rigid. In accordance with its universal and durable ambition, the Paris Agreement does not restrict the scope of the Implementation and Compliance Mechanism to some category of Parties or specific provisions. As implicitly confirmed by the modalities and procedures adopted, it was possible to infer from the precision that the Committee is to ‘pay particular attention to the respective national capabilities and circumstances of Parties’ (Art 15 (2) Paris Agreement), that it would be competent concerning all Parties. Its functions, as seen above, also suggest that a broad range of issues could come within the scope of the future Committee. The modalities and procedures indeed emphasize that ‘[t]he Committee’s work shall be guided by the provisions of the Paris Agreement, including its Article 2’ (Paris Agreement CMA Decision 20/CMA.1, Annex, Section I (3)), that is to say the provision establishing the object and purpose of the treaty, carefully redacted in sufficiently ambitious terms to give a clear trajectory to the interpretations that will be made by the Committee. Furthermore, the modalities and procedures establish that in exercising its functions ‘the Committee should take into account the work being undertaken by other bodies and under other arrangements as well as through forums serving or established under the Paris Agreement with a view to avoiding duplication of mandated work’, which may have an impact on the scope of competence of the Committee, if only to consider that the issue at stake has been, is being, or should be addressed by another forum in the largest sense (see also Paris Agreement CMA Decision 20/CMA.1, Annex, Section I (4)). It is possible to make the case that the modalities and procedures also favour a broad understanding of the ratione materiae competence of the Committee, by stating that ‘it should take into account consideration related to the impacts of response measures’, another emphasis on the need for material consistency, horizontally as well as vertically, that could be seen as an opportunity to define progressively a global climate (or ecological) order (Paris Agreement CMA Decision 20/CMA.1, Annex, Section III (19) (e)).
26 Therefore, if according to the relative character of treaties, the mandate of the Committee established by the Paris Agreement only concerns the implementation of and compliance with the provisions of this treaty, by its Parties, and thus does not encompass non-party (voluntary) commitments nor the provisions of the Kyoto Protocol, in practice the Committee’s casuistic work will be guided by a global approach. In other words, for the purpose of examining the implementation of and compliance with the provisions of the Paris Agreement by an individual Party to this treaty, the Committee will take into account the normative context (or environment) of each case. Then, it may be considered that the UNFCCC, as the framework Convention of the Paris Agreement, will also be part of the applicable law before the Paris Agreement Implementation and Compliance Committee, even if this core systemic issue was never clarified politically. The declaration of non-compliance by the Enforcement Branch in 2009 regarding Croatia raised this issue of the relationship between the UNFCCC and the Kyoto Protocol provisions, as well as between the decisions of the COP and those of the CMP. Croatia appealed to the CMP (Appeal of the Republic of Croatia, 2010, para 4) against the final decision of the Enforcement Branch alleging that it failed to consider the flexibility granted to Croatia by a decision of the COP on the basis of the principle of common but differentiated responsibilities, enshrined in a provision of the UNFCCC (Art 4(6)). Finally the CMP did not have the chance to pronounce itself, as Croatia withdrew its appeal. This case, albeit in a different normative context, showed nevertheless that it was crucial to frame the Paris Agreement Implementation and Compliance Committee in the light of the overall normative architecture established by the climate regime, and even further. Hence, the same is also true, more broadly, for the institutional and procedural framework progressively set up.
2. Adaptation to the Procedural Mechanisms Set Up by the Related Agreement
27 In the following section, the climate regime is conceived, in some respect, as a ‘normative system’ on its own, that might be designated as a ‘self-contained regime’ (International Law Commission, Report of the Study Group on Fragmentation of International Law, 68) from the perspective of international legal order, to analyse in detail how compliance procedures rely on review processes delivering information on implementation and compliance (sec B.2.a below), but also on the arrangements providing incentives (market mechanisms, support, capacity-building, etc) to the Parties, along with compliance procedures (sec B.2.b below).
(a) The Impact of Review Mechanisms on Initiations of Compliance Procedures
28 Generally, MEA compliance mechanisms may be initiated not only by the Parties but also by the secretariat or the plenary, and all of them are presumed to have an interest in triggering compliance procedures (Admissibility of Complaints in Compliance Procedures). This is the case with the Kyoto Protocol Compliance Mechanism, which may receive submissions by any Party with regard to itself or another Party. This trigger has, however, never been used, except if one considers the question of implementation brought by a group of non–Annex I countries regarding compliance with the reporting commitments of a group of Annex I countries, but that never resulted in a final decision to examine or not further the issue. Nevertheless, this basis of competence has been partially maintained for the Paris Agreement Implementation and Compliance Committee (Paris Agreement CMA Decision 20/CMA.1, Annex, Section III (20)), and a procedural step has been added, in order to prevent unreasonable initiation of the Paris Agreement Implementation and Compliance procedure by one Party regarding its own implementation of and/or compliance with any provision of the Paris Agreement, as in this hypothesis: ‘the Committee will undertake a preliminary examination … with a view to verifying that the submission contains sufficient information’ (Paris Agreement CMA Decision 20/CMA.1, Annex, Section III (21)). In addition, the Kyoto Protocol Compliance Committee may be triggered by the Secretariat on the basis of ‘questions of implementation’ raised by ‘Expert Review Teams’ (‘ERTs’) in their reports, connecting systematic review mechanisms and casuistic compliance procedures.
29 Indeed, these reports result from the strict continuous monitoring system established by Article 8 Kyoto Protocol, according to which the Parties’ measurement and reporting on the Kyoto Protocol implementation are complemented by a verification of information reported, to determine if it matches reality and complies with guideline requirements. The ERTs also have the particular mandate of providing appropriate advice to the Parties in order to correct inaccuracies and to remedy observed omissions and prevent their recurrence. At this stage, the purpose is not to establish non-compliance by the Party concerned, but rather to provide it with the necessary scientific and technical assistance to comply with its obligations. Nevertheless, ultimately, ERT reports may indicate a question of implementation that will be referred by the Secretariat to the Kyoto Protocol Compliance Committee (Kyoto Protocol CMP Decision 27/CMP.1, Annex, Section VI (1)).
30 In practice, all the questions of implementation that the Enforcement Branch has addressed have been raised in ERT reports. ERT reports also play a crucial role in the assessment of the question of implementation (Evidence: Compliance Procedures; Proof: Compliance Procedures), as even if the Compliance Committee’s rules of procedure set out the terms on the utilization of expertise in an extremely flexible way (Kyoto Protocol CMP Decision 4/CMP.2, Annex, Rule 21), in practice experts invited always included members of the initial ERT or of the UNFCCC roster of experts (Tabau, 2017, 376). ERTs are finally closely involved in the resolution of questions of implementation as, for instance, they allow the reinstatement of Parties that were suspended from participating in the flexibility mechanisms (Follow-up Mechanism: Compliance Procedures).
31 Given their significant role in compliance procedures, discussions emerged with regard to the margin of discretion of ERTs in the identification of a question of implementation (Huggins, 2015, 119). The Enforcement Branch pointed that differing interpretation of the provision requiring ERTs to raise a question of implementation if ‘unresolved problem[s] pertaining to language of a mandatory nature still exists’ (Kyoto Protocol CMP Decision 22/CMP.1, Annex, para 8) may lead to different conclusions. It further noted with concerns that ‘this reveals more systematic issues that concerns the review process under Article 8 of the Kyoto Protocol and the compliance system as a whole, which require urgent attention’ (Decision under Paragraph 2 of Section X, 2011, para 14). This concern led to regular joint workshops with the participation of members and alternate members of the Compliance Committee and inventory lead reviewers, in order to provide a common platform for discussions on improving the consistency of reviews.
32 The case of Monaco is interesting in this respect, as it raised the issue of the desirability for a Committee self-trigger even if no question of implementation is listed in the ERT report. This Annex I Party to the Kyoto protocol submitted an incomplete sixth National Communication, but integrated the missing information within two weeks. Therefore, the ERT did not identify any question of implementation. This led some Enforcement Branch members ‘to express concerns, considering that this omission by the ERTs to submit a question of implementation may violate the Kyoto Protocol rules and furthermore hamper the oversight function of the Enforcement Branch’ (Jacur, 2016, 247). Nevertheless, the Enforcement Branch considered that it has no legal basis for ‘an autonomous Committee’s trigger’, and therefore did not further address this case (Report on the Twenty-Sixth Meeting, para 5).
33 The Facilitative Branch has been less cautious in the interpretation of its own mandate. It developed a practice of promoting the self-triggering of a Party, when a national communication report is not submitted within six weeks after the due date, as this delay is brought not only to the attention of the CMP and the public but also of the Compliance Committee (Kyoto Protocol CMP Decision 22/CMP.1, Annex, para 139; Kyoto Protocol CMP Decision 4/CMP.2, Annex, Rule 24). So, even if the ERT does not raise a question of implementation with regard to this procedural commitment, the Committee may nevertheless be aware of the matter. This proactive interpretation did not induce, in practice, any subsequent Party’s submission to the Facilitative Branch regarding its own implementation of the Kyoto Protocol reporting commitments, but it may be argued that it produced some results in terms of promoting compliance. Indeed, following this reasoning, the Facilitative Branch decided to send a letter offering its services to Monaco, considering the delay in submitting its fifth National Communication. It stimulated an answer from this Party and, arguably, the subsequent submission of its fifth National Communication. As seen above, it did not, however, prevent the late and incomplete submission of Monaco’s sixth National Communication.
34 This broad understanding of the Facilitative Branch mandate has also been applied to its early-warning function. Indeed, the Facilitative Branch considers that its function of providing advice to prevent non-compliance with GHG emission reduction targets could be initiated, even in the absence of a question of implementation. In such cases, the information contained in review reports made available to the Committee (Kyoto Protocol CMP Decision 27/CMP.1, Annex, Section VI (3)) may cause Facilitative Branch Members to identify potential cases of non-compliance and bring them to the attention of the Facilitative Branch. This situation, however, led to the effective self-triggering of the Facilitative Branch only when the information available was ‘sufficient to engage in an early-warning function exercise’ (Report on the Eleventh Meeting, para 9; Report on the Twelfth Meeting, para 18), that is to say only with respect to Canada after a declaration by its Prime Minister. Given its withdrawal from the Kyoto Protocol, this Party considered that support from the Compliance Committee was useless and therefore the Facilitative Branch did not proceed further with this case.
35 The Paris Agreement also provides for continuous monitoring and review of actions undertaken by each Party and of the support provided individually (Tabau, 2016, 29). The objective of the ‘Enhanced Transparency Framework’ (Art 13 Paris Agreement) is ‘to build mutual trust and confidence and to promote effective implementation’ (at Art 13 (1)), ‘in a facilitative, non-intrusive, non-punitive manner, respectful of national sovereignty, and avoid placing undue burden on Parties’ (at Art 13 (3)). Therefore, the literature as well as some negotiating Parties questioned the added value of the Implementation and Compliance Committee (Zahar, 2017, 69; Ad Hoc Working Group on the Paris Agreement, Draft Elements for APA Agenda Item 7, 2). It also caused some authors to recommend an ERT trigger through the Secretariat (Van Asselt, 2016, 93), as this activation of Implementation and Compliance procedures may better correspond to the ‘non adversarial’ nature of the Paris Agreement Implementation and Compliance procedure. Taking into account past experience under the Kyoto Protocol, which called into question the political neutrality of ERTs (Huggins, 2015, 111), this type of initiation has nevertheless been removed from the Paris Agreement Implementation and Compliance modalities and procedures. However, a trigger by the Committee itself has been created (Paris Agreement CMA Decision 20/CMA.1, Annex, Section III (22)), comparable to compliance procedures in some other transversal MEAs (eg Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters [‘Aarhus Convention’] Meeting of the Parties Decision I/7, para 14; Convention on Environmental Impact Assessment in a Transboundary Context [‘Espoo Convention’] Meeting of the Parties Decision III/2, Appendix, para 6). It could avoid inequitable treatment among Parties and inconsistencies in ERT reviews. Furthermore, to avoid the negative impact this Committee self-trigger may also have on the perceived impartiality of the Implementation and Compliance Committee, the modalities and procedures distinguish between a strict a proprio motu trigger (Paris Agreement CMA Decision 20/CMA.1, Annex, Section III (22) (a)) and a proprio motu trigger involving the subsequent consent of the concerned Party (Paris Agreement CMA Decision 20/CMA.1, Annex, Section III (22) (b)). Indeed, the first hypothesis is limited to a formal consideration of implementation or compliance with an exhaustive list of procedural commitments, which may be detected publicly, as Parties’ reports and records of their participation to the ‘facilitative, multilateral consideration of progress’ will be published online by the Secretariat (Paris Agreement CMA Decision 18/CMA.1, para 6 (c)). These two hypotheses of Committee self-initiation of its consideration of implementation and compliance with the provisions of the Paris Agreement by an individual Party, that complement initiation of the procedure by a Party regarding its own implementation or compliance, could also favour the identification and the addressing of systemic issues by the Committee, another innovation in the climate regime (Paris Agreement CMA Decision 20/CMA.1, Annex, Section V) inspired by other MEAs (eg Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal [‘Basel Convention’] Conference of Parties Decision VI/12, Appendix, para 21; Stockholm Convention on Persistent Organic Pollutants [‘Stockholm Convention’] Conference of Parties Decision SC-3/20, Annex, para 32). However, in order to avoid the negative impact this examination may also have on the legitimacy of the Implementation and Compliance procedure, consideration of systemic issues will always involve the CMA, securing the necessary political endorsement, as in the field of biological diversity (cf International Treaty on Plant Genetic Resources for Food and Agriculture [‘ITPGRFA’] Governing Body, Draft Procedures, Section V.1(c)), whether to request that the Committee examine such a systemic issue, or to consider the recommendations made by the Committee on issues faced by a number of Parties.
36 Thus, the strict proprio motu trigger by the Paris Agreement Implementation and Compliance Committee will be based on the publicly available assessment of whether or not the Party concerned participated, if only formally, in the process of the enhanced transparency framework, while initiation by the Committee and examination of an individual case with the consent of the concerned Party should also be informed by other sources, as these actions will imply addressing the content of the contributions, communications, information, and reports of this Party. Additional sources of information for this substantive examination of individual cases may result from experts and from the Paris Agreement’s processes that may be sought by the Committee (Paris Agreement CMA Decision 20/CMA.1, Annex, Sections III (25) (c) and VI), including collective information-gathering processes, such as the global stocktake (Art 14 Paris Agreement; Friedrich, 2017, 319). Yet, this Paris Agreement innovative process, aiming at facilitating the enhancement of ambition, will also be fed by a wide variety of sources of information (ie reports from the Intergovernmental Panel on Climate Change and from other climate regime subsidiary bodies; see Paris Agreement CMA Decision 19/CMA.1, Annex, Section II (37)), and will review not individual but collective achievement. So, while the global stocktake may provide for some kind of counter-expertise to the review carried out under the enhanced transparency framework on an individual basis, it may also complete the dialogue that may be established between the Committee and the concerned Party (Paris Agreement CMA Decision 20/CMA.1, Annex, Section III (19) (b), (25) (a) and (b)) regarding collective commitments, for instance with regard to financial support or other incentives.
(b) The Impact of Available Incentives on the Outputs of Compliance Procedures
37 MEAs generally provide incentives or support to Parties in order to help effective implementation, independently of compliance procedures. For instance, financial incentives have been used in the Montreal Protocol on Substances that Deplete the Ozone Layer in order to reduce the cost associated with the phasing out of substances that are covered by this treaty. However, as proven by the Kyoto Protocol, market-based incentives may imply important regulatory efforts and be associated with overly strict controls. But means of implementation provided by MEAs may also be relied on to feed the associated compliance procedure outputs, either as a support or as a sanction.
38 The latter has been tested by the Kyoto Protocol Compliance Mechanism and has provided some convincing results. Indeed, one of the sanctions incurred by Annex I Parties, in case of noncompliance with their reporting commitments, is ineligibility to participate in the flexibility mechanisms. Yet, this measure also has the advantage of being automatically enforceable. Therefore, market mechanisms, initially conceived as incentive tools for international climate cooperation, also proved to be useful in dissuading non-compliance. The benefits offered by the flexibility mechanisms are also easy to suspend as a sanction. On the other hand, it may be considered in some respect that ‘compliance action plans’ are outputs envisaged by the Kyoto Protocol compliance procedures which may be classified not as punitive measures, but as (capacity-building) support provided to the Parties by the climate regime.
39 Yet, it might be advocated that, with respect to means of implementation, thus broadly conceived, the Paris Agreement has greater potential than the Kyoto Protocol, which is mainly restricted to market mechanisms and to insufficient financial mechanisms. Indeed, processes, institutions and norms regarding issues that only fall within the mandate of the Facilitative Branch were noticeably upgraded in the Paris Agreement (Warsaw International Mechanism for Loss and Damage, Capacity-Building Initiative for Transparency, Paris Committee on Capacity-Building, Green Climate Fund, etc). This allows for some suggestions regarding outputs that may correspond to the ‘facilitative’ and ‘non-punitive’ nature of the Paris Agreement Implementation and Compliance Mechanism.
40 These outputs may generally consist of directing the Party concerned to the most suitable implementation process among the multiple arrangements that have been set up with overlapping functions but with varied focus. For now, most of these processes need to be consolidated to be truly operational, but they are generally conceived as information and best-practice sharing processes involving various stakeholders, in addition to more traditional financial mechanisms. The procedures of the Paris Agreement Implementation and Compliance Mechanism may thus play an important role in the smooth articulation of this sophisticated framework, but also in the identification of the normative needs to be fulfilled, by identifying the most adequate process, as issues of implementation and compliance arise in practice. In other words, the Paris Agreement Compliance and Implementation procedures may consider outputs that have the potential to avoid duplication while exploiting in an optimal manner opportunities offered by these arrangements, by boosting the operationalization of the most needed processes, as revealed through practice. In this respect, ‘the Party concerned may provide to the Committee information on particular capacity constraints, needs or challenges, including in relation to support received, for the Committee’s consideration in its identification of appropriate measures, findings and recommendations’ (Paris Agreement CMA Decision 20/CMA.1, Annex, Section IV (29)). As noted by Dagnet and Northrop, ‘[s]uch alignment with the financial, technical, and capacity-building assistance under Paris Agreement bodies and institutions must, however, be carefully developed so as to avoid the creation of any perverse incentives’ (2017, at 350). This may explain why a large margin of discretion has been left to the Committee to take ‘appropriate measures’, with only an indicative list of such outputs. That list is formulated in a progressive manner, ranging from ‘dialogue’ between the Committee and the Party concerned to ‘issu[ing] findings of fact’ (Paris Agreement CMA Decision 20/CMA.1, Annex, Section IV (30) (e)). ‘With a view to facilitating implementation and promoting compliance’ with the provisions of the Paris Agreement (Paris Agreement CMA Decision 20/CMA.1, Annex, Section IV (30)), the Committee may also intervene to optimize the use of the ‘relevant bodies or arrangements’ laid out in the Agreement (Paris Agreement CMA Decision 20/CMA.1, Annex, Section IV (30) (b) and (c)) in order to ‘[access] finance, technology and capacity-building support’ (Paris Agreement CMA Decision 20/CMA.1, Annex, Section IV (30) (a))—if necessary with the help of an ‘action plan’ (Paris Agreement CMA Decision 20/CMA.1, Annex, Section IV (30) (d))—to secure the renewed global climate change regime.
C. Securing the Climate Change Regime through Compliance Procedures
41 Even if the expression is now contested, MEAs may be conceived as ‘self-contained regimes’. Indeed, this concept refers, in its broad sense, ‘to interrelated wholes of primary and secondary rules, sometimes also referred to as ‘systems’ or ‘subsystems’ of rules that cover some particular problem differently from the way it would be covered under general law’ (International Law Commission, Report of the Study Group on Fragmentation of International Law, 68). Their compliance procedures may also be analysed by analogy with the narrow understanding of this concept ‘to denote a special set of secondary rules under the law of State responsibility that claims primacy to the general rules concerning consequences of a violation’ (International Law Commission, Report of the Study Group on Fragmentation of International Law, 68; see also Simma, 1985, 115). Actually, MEAs and their related compliance procedures are not isolated, as they are set up according to general international law and do not exclude external judicial means of addressing a breach of the treaty. Therefore, to be attractive, the compliance committees need to appear as legitimate as international jurisdictions (sec C.1 below). Indeed, procedural guarantees may reinforce the authority of their decisions, and ultimately the effectiveness of the related regime (sec C.2 below).
1. Securing the Legitimacy of the Compliance Committee
42 The perceived legitimacy of compliance procedures is crucial for their social acceptance and the optimization of their performance. Consequently, these procedures need to envisage safeguards favouring their own legitimacy, to increase the legal certainty surrounding MEAs and ultimately their effective action on the ground (Bodansky, 1999, 596). Hence, the legitimacy of a given compliance mechanism is highly dependent upon the context of the issue at stake. Therefore, it is useful to analyse the safeguards envisaged by climate change compliance procedures according to the core political debates that drove the evolution of the climate regime, that is to say the correct balance between national sovereignty and international oversight (sec C.1.a below) and considerations of the varied capabilities and national circumstances (sec C.1.b below) of the Parties.
(a) Balancing National Sovereignty and International Oversight
43 The climate regime has been described as having evolved from a ‘top-down’ to a ‘bottom-up’ dynamic. Actually, the Kyoto Protocol and the Paris Agreement both reflect a mix of these two approaches (Doelle, 2017, 387; Farber and Peeters, 2016, 696–99). They nevertheless vary in placing the cursor, and their respective compliance procedures need to respect, but also to secure, the balance reached in order to appear legitimate to the Parties but also to the public. In other words, the subtle political equilibrium achieved in 2015 for the long term has to be reflected in compliance procedures.
44 The Kyoto Protocol Compliance procedures may be conceived as ‘soft-responsibility mechanisms’ and its Enforcement Branch as a ‘quasi-judicial’ organ (Boisson de Chazournes and Mbengue, 2007, 73). The same, however, may not be said of the Paris Agreement Implementation and Compliance Mechanism, which is expressly qualified as ‘non-adversarial’ (Art 15 (2) Paris Agreement). Nevertheless, they both provide for procedural guarantees inspired by the due process principle and procedures before international judicial mechanisms (Due Process in Compliance Procedures).
45 These safeguards are even foreseen by the Paris Agreement itself, while they were only inscribed in a CMP decision for the Kyoto Protocol compliance procedure. Indeed, Article 15 Paris Agreement specifies that its Implementation and Compliance Mechanism shall ‘function in a manner that is transparent’. A lot might have been inferred from this requirement, which the modalities and procedures adopted in December 2018 laid out in procedural terms. As the experience under the Kyoto Protocol Compliance Mechanism suggested, it has been interpreted as implying that it provides the opportunity for the concerned Party to make oral and written submissions, fixes clear time lines for each stage of the proceedings, declares any conflict of interest by the members of the Committee, delivers reasoned decisions, and makes documentation and deliberation publicly available (Kyoto Protocol CMP Decision 27/CMP.1, Annex, Sections VIII, IX and Paris Agreement CMA Decision 20/CMA.1, Annex, Section III (25)).
46 Such safeguards, which are to be further specified in the rules of procedure planned for recommendation by the Paris Agreement Implementation and Compliance Committee to the CMA 3 in November 2020 (Paris Agreement CMA Decision 20/CMA.1, Annex, Section II (18)), are clearly inspired by the transparency that is expected from international judicial mechanisms (Neumann and Simma, 2013, 472), and may be considered as a manifestation of global administrative law (Harlow, 2006, 204). The analogy suggests that any departure from these safeguards will need to be justified in order to be politically admissible. Indeed, Parties retained the desirability of some confidentiality in Implementation and Compliance procedures (Ad Hoc Working Group on the Paris Agreement, Draft Elements APA Agenda Item 7, 5 and Paris Agreement CMA Decision 20/CMA.1, Annex, Section II (14)). While such an arrangement may correspond to the ‘non-punitive’ character of the Paris Agreement Implementation and Compliance Mechanism, in order to avoid undermining its overall legitimacy, exceptions to transparency will have to be applied equally among Parties and compensated by even more motivated decisions. What will be meant by ‘confidentiality’ will be crucial. However, previous practice under the Kyoto Protocol suggests that the probability of such a situation should not be overestimated. Indeed, in that respect the experience of the Enforcement Branch shows that an ‘overriding’ reason for holding a meeting behind closed doors has never been invoked. However, the plenary held some sessions in private, as they were intended at hearing a report from the co-chairs of the Compliance Committee on their participation in meetings of inventories’ lead reviewers, which were themselves held behind closed doors (Kyoto Protocol Compliance Committee, Tenth Annual Report to the CMP, para 21).
47 If some questions of implementation implied interpretation of the provisions of the Kyoto Protocol, the Enforcement Branch mainly used its discretionary power of appreciation to conduct an analysis of the match between the incurred consecutive measures and the objective of achieving the restoration of compliance, making the outcome of the procedure acceptable by the Party concerned, and also effective, which inevitably suppose its good will (Tabau, 2017, 363). Therefore, the balance reached between national sovereignty and international cooperation may also be reflected on outputs of compliance procedures.
48 In that respect, the Kyoto Protocol compliance procedures take the form either of incentives or of sanctions, where the Paris Agreement makes clear that the Implementation and Compliance Committee shall function in a manner that is ‘non-punitive’ (at Art 15 (2)). This indication suggests that in any case the outputs of the procedure may not consist in the suspension of an advantage provided by the Paris Agreement, as was the case under the Kyoto Protocol regarding flexibility mechanisms. Rather, outcomes of the Paris Agreement Implementation and Compliance Mechanism will necessarily be ‘facilitative’ (at Art 15 (2)). Whether a declaration of non-compliance represents a ‘name and shame’ sanction for the concerned Party or a following measure corresponding to the facilitative and non-punitive nature of the future Implementation and Compliance procedures remains controversial among the Parties (Ad Hoc Working Group on the Paris Agreement, Draft Elements APA Agenda Item 7, 12). However, in the end, it will depend on how a huge variety of stakeholders will take advantage of the measure to ‘issue findings of fact in relation to matters of implementation and compliance’ regarding at least procedural commitments (Paris Agreement CMA Decision 20/CMA.1, Annex, Section IV (30) (e)) that might be examined by the Committee under its strict proprio motu initiative.
49 Therefore, the Implementation and Compliance Committee could rather play a role of connector within the network of processes and institutions functioning within the climate regime. Its intervention would thus mainly consist in the delivering of advisory opinions on the most appropriate forum to overcome the question of implementation concerned or the compliance issue at stake. It could even directly formulate its advice to the identified institution(s). Acting as an orchestrator, the Committee may also enlist intermediary actors on a voluntary basis, by providing them with a framework, to facilitate concretely implementation and promote compliance by Parties (Abbott and others, 2015, 3).
(b) Considering Capabilities and National Circumstances
50 It can be considered that the political context in which the climate regime has evolved since its start is closely linked to the fact that the Parties vary both in their levels of responsibility for climate change and in their capacities to cope with it. Therefore, the ‘Common but Differentiated Responsibilities’ principle, established by the 1992 Rio Declaration on Environment and Development, significantly shaped the climate regime.
51 As such, it provided a basis to differentiate between developed (Annex I) and developing (Non-Annex I) Parties under the UNFCCC and Kyoto Protocol, which also appears, as seen above, in the mandate of the branches of the Kyoto Protocol Compliance Committee.
52 For its part, the Paris Agreement avoids fixing too rigidly categories of countries as it provoked a deterrent effect on international climate cooperation (Huggins and Karim, 2016, 427). Basically, the aim of the ‘post-2012’ negotiations was to reach a consensus on a universal climate agreement. The fact that the Paris Agreement is applicable to all its Parties does not mean, however, that it has to be applied symmetrically in all of its elements. In particular, the principle can be reflected in norms of different procedures (Rajamani, 2013, 165).
53 Thus, among the few requirements regarding the Implementation and Compliance Mechanism, the Paris Agreement states that ‘[t]he Committee shall pay particular attention to the respective national capabilities and circumstances of Parties’ (at Art 15 (2)). The rules of procedure to be recommended by the Committee to the CMA 3 are also required to ‘pay particular attention to the respective national capabilities and circumstances of Parties’ (Paris Agreement CMA Decision 20/CMA.1, Annex, Section II (17)), to highlight one of the frequent, not to say systematic, occurrences of this expression in the modalities and procedures adopted at CMA 1 in December 2018. It implies, according to some authors, differentiating the outputs due to this consideration (Winkler and Rajamani, 2013, 102). It may also be advocated that the first elements already provided by the COP regarding the composition of the future Committee also reflect such attention to the plurality of situations.
54 Indeed, to appear fair and impartial, and thus legitimate, the Committee shall be composed of members coming from groups reflecting the main interests at hand. The Parties therefore have already agreed that the twelve Committee Members are to be ‘elected by the CMA on the basis of equitable geographical representation, with two members each from the five regional groups of the United Nations and one member each from the small island developing States and the least developed countries’ (UNFCCC COP Decision 1/CP.21, para 102). The emphasis on small island developing States and least developed countries, which appears several times in the Paris Agreement, expresses their specific vulnerability to climate change and growing claims for climate justice. The need to take into account ‘the goal of gender balance’ (UNFCCC COP Decision 1/CP.21, para 102) for the composition of the Committee is also interesting from this point of view.
55 Members of the Committee will nevertheless sit in their personal and/or professional capacity and not as representatives of the governments from the group to which they belong. Indeed, the Paris Agreement specifies that the Committee will be ‘expert-based’ (at Art 15 (2)), and UNFCCC COP Decision 1/CP.21 makes explicit that the members of the Committee will have ‘recognized competence in relevant scientific, technical, socioeconomic or legal fields’ (at para 102).
56 This composition will not only avoid the politicization of the Committee, and therefore a sense of fair treatment essential in promoting compliance, but also allow for a thorough understanding of questions of varied nature. It will therefore differentiate the Implementation and Compliance Committee from the CMA that may also address cases of non-compliance and/or questions of implementation. The added value with regard to expert assessment within the enhanced transparency framework may result from the mandate duration of the Committee’s Members and the modalities for rotation in membership that arrange some continuity and smooth transition by staggering the terms (Paris Agreement CMA Decision 20/CMA.1, Annex, Section II (7)–(9)).
57 Some other procedural features may derive from the necessity of the Committee to consider national capabilities and circumstances. One that should be considered carefully is the decision-making process (Adoption of Non-compliance Reports), given the previous experience of the Facilitative Branch of the Kyoto Protocol Compliance Committee. Indeed, this branch, composed of ten members representing the interests at stake under the Kyoto Protocol (one member for each of the five of the UN regional groups, one member from small island developing States, two members from Annex I Parties, and two members from Non-Annex I Parties), needs a majority of at least three-quarters of the members present and voting, which is also the quorum required of present members for the adoption of any decision (Kyoto Protocol CMP Decision 27/CMP.1, Annex, Section II (8)). The first question of implementation that was brought before the Facilitative Branch was interesting in that respect, as it implied a trigger by a group of Non-Annex I Parties regarding non-compliance by a group of Annex I Parties. However, the Facilitative Branch was unable to adopt a decision, and therefore essentially did not address the case. Such a rocky start should be avoided regarding the Paris Agreement Implementation and Compliance Committee, but at the same time the legitimacy of the Committee called for decisions adopted by consensus (Paris Agreement CMA Decision 20/CMA.1, Annex, Section II (16)) and by an even more representative required quorum (Paris Agreement CMA Decision 20/CMA.1, Annex, Section II (15)).
2. Securing the Effectiveness of the Climate Change Regime
58 The effectiveness of MEAs is a source of concern and has been for a long time. It is the exact raison d’être of compliance procedures. However, the notion of effectiveness of international environmental law has a varied understanding (Maljean-Dubois, 2017, 4). In a strict juridical sense it signifies compliance with commitments inscribed in the treaty. It can also refer to the ability of the provisions of a treaty to stimulate behavioural changes from primary and secondary recipients of the rule. A broader understanding of effectiveness means solving the environmental issue at stake. All these definitions share the difficulty to assess the effectiveness of complex environmental issues like climate change. The negotiations that led to the adoption of the Paris Agreement tried to take fully into account such complexity, in particular by including, as far as possible, non-parties to the process (sec C.2.a below), but also by considering the links between the climate regime and other fields of international law (sec C.2.b below). This inclusive dynamic could also be accompanied by the Implementation and Compliance procedures.
(a) Increasing Non-Parties’ Involvement in Global Climate Governance
59 The climate regime needs to be backed by involvement of non-parties, whether from local governments and cities or from private stakeholders (companies, banks, non-governmental organizations, etc). The Paris Agreement does not fix any commitment, even of a procedural nature, to non-parties. However, its preamble and Decision 1/CP.21 recognize their action and encourage them to provide information in this respect, in a dedicated online platform, the Non-State Actor Zone for Climate Action (‘NAZCA’) portal. The Paris Agreement Implementation and Compliance Mechanism should support this globalization of climate governance, with the aim of leveraging the groundswell of actions and information from non-state actors.
60 Some authors argued, on the basis of the experience under the Aarhus Convention (Aarhus Convention Meeting of the Parties Decision I/7, Annex, para 18), that one way to do so could be to allow triggering by non-parties (Van Asselt, 2016, 93). However, the modalities and procedures adopted do not retain this option, which was not even considered during the negotiations, demonstrating the reluctance of Parties to open such a Pandora’s box (Ad Hoc Working Group on the Paris Agreement, Draft Elements APA Agenda Item 7, 7). Neither was this option enshrined in the Kyoto Protocol Compliance procedures. Indeed, such a trigger could lead to the congestion of the Committee, and increase the associated cost of functioning. In any case, given its ‘non-adversarial’ nature, if non-parties had been able to trigger the Implementation and Compliance Committee, it would not have been directed to a Party.
61 As a matter of fact, another, and possibly more efficient, way to increase the role of non-state actors within the Implementation and Compliance procedures may take the form of amicus curiae arrangements. Actually, the Kyoto Protocol Compliance Committee procedures envisage that ‘[c]ompetent intergovernmental and non-governmental organizations may submit relevant factual and technical information to the relevant branch’ (Kyoto Protocol CMP Decision 27/CMP.1, Annex, Section VIII (4)). However, this has never happened in practice. That may explain why current negotiations do not consider duplicating this provision for the Implementation and Compliance procedures. Yet, it would have been more useful in this framework, given the broader substantive scope of the Paris Agreement compared to the Kyoto Protocol and the bottom-up dynamic of NDCs. It may be advocated that this could be compensated for by the option of considering reports from other subsidiary bodies of the climate regime as a source of information for compliance procedures, as they are, generally, themselves more and more open to and fed by non-parties, which may also be sought by the Committee in the course of its work as ‘expert advice’ (Paris Agreement CMA Decision 20/CMA.1, Annex, Section VI (35)). Regarding the latter, much will thus depend on the practice of the Committee in the use of its discretion in this regard.
62 Finally, increasing the involvement of non-parties may entail taking into account their tendency to rely on national courts to challenge climate (in)action or to seek compensation for loss and damages suffered in relation to climate change (United Nations Environment Programme, 2017; Climate Change Litigation). In that respect, the interpretations by the Implementation and Compliance Committee of the extensive secondary law that derives from the climate regime may prove useful for potential litigants. Indeed, the Urgenda case law (Urgenda v The State of the Netherlands, 2015) has shown that even if climate regime secondary law may not be directly invoked before national courts, judges may still refer to it as a background element to be taken into account in interpreting and applying internal law (Tabau and Cournil, 2015, 233). Therefore, it is possible to welcome the provision of the modalities and procedures making it clear that ‘nothing in the work of the Committee may change the legal character of the provisions of the Paris Agreement’ (Paris Agreement CMA Decision 20/CMA.1, Annex, Section III (19) (a)). It did not prevent, and may even have allowed, the adoption of some ‘systemic’ indications, since, in exercising its functions to address matters that relate to the implementation of and compliance with the provisions of the Paris Agreement by an individual Party, the ‘Committee should take into account the work being undertaken by other bodies and under other arrangements as well as through forums serving or established under the Paris Agreement with a view to avoiding duplication of mandated work’. That formulation therefore leaves enough margin of appreciation to the Committee to ‘take into account’ in particular national case-law (Paris Agreement CMA Decision 20/CMA.1, Annex, Section III (19) (d)). According to the same logic, if one can regret that the adopted procedures and modalities do not clarify that the CMA decisions and reports of the Paris Agreement’s subsidiary bodies are part of applicable law before the Implementation and Compliance Committee, as was the case for the Kyoto Protocol compliance procedures, in reality Parties agreed to go much further in the process of revealing some material unity of the global climate order. Indeed, even if it was not clarified that the Implementation and Compliance Committee should take into account all pertinent international norms, as it would favour substantive defragmentation of the climate regime, the formulation of the innovative provision according to which the Committee should also ‘take into account considerations related to the impacts of response measures’ (Paris Agreement CMA Decision 20/CMA.1, Annex, Section III (19) (e)) leaves important room for interpretation to the Committee. Admittedly, it may include any impacts of response measures to climate change that general and/or special international law are dedicated to avoiding, including human rights violations, or to promoting, such as maintaining international peace and security.
(b) Facilitating Horizontal Defragmentation
63 Implementing the Paris Agreement and complying with its provisions implies economic, regulatory, and technical innovations in multiple sectors, but also the active participation of a broad range of actors. It will therefore necessitate long-term politic and domestic support, especially in developing countries or economies in transition.
64 One way to overcome those challenges is to develop dialogue with compliance committees established under other MEAs. Upon the invitation of its peer from the Basel Convention, the Kyoto Protocol Compliance Committee participated in such a dialogue in 2013. Chairs of the compliance bodies as well as the representatives of the Secretariats of some other treaties—Espoo Convention, Cartagena Protocol on Biosafety to the Convention on Biological Diversity [‘Cartagena Protocol’], London Protocol on Prevention of Marine Pollution to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, ITPGRFA, and Convention on International Trade in Endangered Species of Wild Fauna and Flora—were also invited to attend the tenth session of the Basel Convention Implementation and Compliance Committee. The features of each compliance committee were then presented, focussing on procedural rules that might be useful for the effectiveness of the Basel Convention.
65 Indeed, this initiative was justified by the objective of the Basel Convention Committee to improve timely and complete national reporting. It has been addressed through its ‘general review mandate’, according to which the Basel Convention COP required its Implementation and Compliance Committee to establish such a dialogue with other MEA compliance bodies dealing with national reporting issues (Basel Convention Conference of Parties Decision BC-10/11). This request was based on the assumption that problems with reporting are not unique to the Basel Convention and that there would be value in exchanging information on experiences from other compliance mechanisms in this regard.
66 Such sharing of experience can even lead to some harmonization of control procedures within the ‘climate regime complex’ (Keohane and Victor, 2011, 7). Indeed, this culture of dialogue among MEA compliance mechanisms favouring the ‘defragmentation’ (Maljean-Dubois and Pesche, 2017, 26) of international environmental law should be extended to address crossing-issues, not only substantive in nature but also interesting review mechanisms of other international specialized regimes (Richard, 2011, 339). The latter may include international human rights committees, but also the review mechanisms in other fields identified as materially closely linked to climate change and relevant for addressing it (Paris Agreement, preamble; Carlane, 2016, 261).
67 One can imagine developing such a practice under the future Paris Agreement Implementation and Compliance Committee. It may be developed in the realm of the Committee’s consideration of systemic issues (Paris Agreement CMA Decision 20/CMA.1, Annex, Section V). Indeed, a renewed form of dialogue between the CMA and the Paris Agreement Implementation and Compliance Committee has been established, which includes a Committee trigger by the CMA on such ‘systemic’ issues, as in a recent MEA (see Art 15 (2) Minamata Convention on Mercury), alongside a CMA trigger by the Committee that existed in the Kyoto Protocol compliance procedures in the form of an ‘appeal’ (Kyoto Protocol CMP Decision 27/CMP.1, Annex, Section XI). The initiative of the Committee in the identification of such systematic issues will however be restricted to those ‘with respect to the implementation of and compliance with the provisions of the Paris Agreement faced by a number of Parties’, and ‘shall not address matters that relate to the implementation of and compliance with the provisions of the Paris agreement by an individual Party’. Admittedly, systemic issues identifiable at the initiative of the Committee may lead to a recommendation to the CMA to clarify the links between the Committee and other Paris Agreement review mechanisms. Such work has already been initiated through informal exchanges between the Kyoto Protocol Compliance Committee and technical experts, such as inventory reviewers, ‘to strengthen the skills of the Committee members in carrying out their mandates’ (Jacur, 2016, 249).
68 Interestingly, René Lefeber was invited to the 2013 dialogue as the Chair of the Kyoto Protocol Compliance Committee Enforcement Branch, but finally attended this meeting as the Chair of the Compliance Committee of the International Treaty on Plant Genetic Resources for Food and Agriculture. Before that, he also co-chaired the negotiations on the Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety, adopted in 2010. This highlights the individual responsibility that members of such compliance mechanisms have in the circulation of solutions or sharing of good practice. To favour such personal mobility, it is important to limit the number and duration of the Committee members’ terms. This should be considered in December 2019 when the CMA will designate the first members of the Paris Agreement Implementation and Compliance Committee, as it will be crucial for the robustness of the Paris Agreement and its capacity to influence new kinds of international agreements. Be that as it may, by analogy with what has been said to avoid contradictory solutions in a context of forum shopping, it is first and foremost the conviction of the Committee members that will help defragmentation. In that respect, indeed, ‘institutional structures are finally less important than mental structures’ (‘les structures institutionnelles sont finalement moins importantes que les structures mentales’ [translation by the author]) (Dupuy, 2007, 1–2).
S Krasner (ed), International Regimes (Cornell University Press Ithaca/London 1983).
B Simma, ‘Self-Contained Regimes’ (1985) 16 NYIL 111–36.
M Koskenniemi, ‘Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol’ (1993) 3 YIntlEnvL 123–62.
A Chayes and AH Chayes, The New Sovereignty: Compliance with Treaties in International Regulatory Regimes (Harvard University Press Cambridge 1995).
E Brown-Weiss and HK Jacobson, Engaging Countries: Strengthening Compliance with International Environmental Accords (MIT Press Cambridge 1998).
D Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law’ (1999) 93 AJIL 596–624.
O Young, The Effectiveness of International Environmental Regimes: Causal Connections and Behavioral Mechanisms (MIT Press Cambridge 1999).
J Brunée, ‘Coping with Consent: Law-Making Under Multilateral Environmental Agreements’ (2002) 15 LJIL 1–52.
L Boisson de Chazournes and MM Mbengue, ‘A propos du caractère juridictionnel de la procédure de non-respect du Protocole de Kyoto’ in S Maljean-Dubois (ed), Changements climatiques: Les enjeux du contrôle international (La documentation française Paris 2007) 73–108.
R Lefeber and S Oberthür, ‘Key features of the Kyoto Protocol’s Compliance System’ in J Brunée, M Doelle, and L Rajamani, Promoting Compliance in an Evolving Climate Regime (CUP Cambridge 2012) 77–101.
S Maljean-Dubois and A-S Tabau, ‘From the Kyoto Compliance System to MRV: What Is at Stake for the European Union?’ in J Brunée, M Doelle, and L Rajamani (eds), Promoting Compliance in an Evolving Climate Regime (CUP Cambridge 2012) 317–38.
KW Abbott, P Genshel, D Snidal, and B Zangl, ‘Orchestration: Global Governance through Intermediaries’ in KW Abbott, P Genshel, D Snidal, and B Zangl (eds), International Organizations as Orchestrators (CUP Cambridge 2015) 3–36.
A-S Tabau and C Cournil, ‘New Perspectives for Climate Justice: District Court of the Hague, 24 June 2015, Urgenda Foundation versus the Netherlands’ (2015) 12 Journal for European Environmental & Planning Law 221–40.
R Bodle and S Oberthür, ‘Legal Form of the Paris Agreement and Nature of its Obligations’ in D Klein, MP Carazo, M Doelle, J Bulmer, and A Higham (eds), The Paris Agreement on Climate Change: Analysis and Commentary (OUP Oxford 2017) 91–105.
Y Dagnet and E Northrop, ‘Facilitating Implementation and Promoting Compliance (Article 15)’ in D Klein, MP Carazo, M Doelle, J Bulmer, and A Higham (eds), The Paris Agreement on Climate Change: Analysis and Commentary (OUP Oxford 2017) 338–51.
M Doelle, ‘Assessment of Strengths and Weaknesses’ in D Klein, MP Carazo, M Doelle, J Bulmer, and A Higham (eds), The Paris Agreement on Climate Change: Analysis and Commentary (OUP Oxford 2017) 375–88.
S Maljean-Dubois and D Pesche, ‘La gouvernance internationale de l'environnement entre fragmenatation et défragmentation’ in S Maljean-Dubois (ed), Circulations de normes et réseaux d’acteurs dans la gouvernance internationale de l’environnement (UMR Droits International, Comparé et Européen Aix-en-Provence 2017) 9–35.
Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) 2161 UNTS 447 (‘Aarhus Convention’).
Aarhus Convention Meeting of the Parties Decision I/7, Review of Compliance (21–23 October 2002) Doc ECE/MP.PP/2/Add.8.
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (adopted 22 March 1989, entered into force 05 May 1992) 1673 UNTS 126 (‘Basel Convention’).
Basel Convention Conference of Parties Decision VI/12, Establishment of a Mechanism for Promoting Implementation and Compliance (9–13 December 2002) UN Doc UNEP/CHW.6/40.
Basel Convention Conference of Parties Decision BC-10/11, Committee for Administering the Mechanism for Promoting Implementation and Compliance of the Basel Convention (17–21 October 2011) UN Doc UNEP/CHW.10/28.
Cartagena Protocol on Biosafety to the Convention on Biological Diversity (29 January 2000, entered into force 11 September 2003) 2226 UNTS 208 (‘Cartagena Protocol’).
Cartagena Protocol CMP Decision BS-I/7, Establishment of Procedures and Mechanisms on Compliance under the Cartagena Protocol on Biosafety (23–27 February 2004) UN Doc UNEP/CBD/BS/COP-MOP/1/15 (2004).
Cartagena Protocol CMP Decision BS-V/1, Report of the Compliance Committee (11–15 October 2010) UN Doc UNEP/CBD/BS/COP-MOP/5/17 (2010).
Convention on Environmental Impact Assessment in a Transboundary Context (adopted 25 February 1991, entered into force 10 September 1997) 1989 UNTS 309 (Espoo Convention).
Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1973, entered into force 1 July 1975) 993 UNTS 243.
Draft Elements for APA Agenda Item 7: Modalities and Procedures for the Effective Operation of the Committee to Facilitate Implementation and Promote Compliance referred to in Article 15.2 of the Paris Agreement (13 November 2017).
Espoo Convention Meeting of the Parties, Decision III/2, Review of Compliance (1–4 June 2004) Doc ECE/MP.EIA/6.
International Law Commission, Report of the Study Group on Fragmentation of International Law (Finalized by Martti Koskenniemi) (13 April 2006) UN Doc A/CN.4/L.682.
International Treaty on Plant Genetic Resources for Food and Agriculture (adopted 03 November 2001, entered into force 29 June 2004) 2400 UNTS 303 (ITPGRFA).
ITPGRFA Governing Body, Draft Procedures and Operational Mechanisms to Promote Compliance and to Address Issues of Non-Compliance (29 October–2 November 2007) Doc IT/GB-2/07/14.
Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 162.
Kyoto Protocol CMP Decision 4/CMP.2, Compliance Committee (6–17 November 2006) UN Doc FCCC/KP/CMP/2006/10/Add.1.
Kyoto Protocol CMP Decision 4/CMP.4, Compliance Committee (1–12 December 2008) UN Doc FCCC/KP/CMP/2008/11/Add.1.
Kyoto Protocol CMP Decision 8/CMP.9, Compliance Committee (11–23 November 2013) UN Doc FCCC/KP/CMP/2013/9/Add.1.
Kyoto Protocol CMP Decision 22/CMP.1, Guidelines for Review under Article 8 of the Kyoto Protocol (28 November–10 December 2005) UN Doc FCCC/KP/CMP/2005/8/Add.3.
Kyoto Protocol CMP Decision 27/CMP.1, Procedures and Mechanisms relating to Compliance under the Kyoto Protocol (28 November–10 December 2005) UN Doc FCCC/KP/CMP/2005/8/Add.3.
Kyoto Protocol Compliance Committee, Experience of the Facilitative branch of the Kyoto Protocol Compliance Committee in Providing Advice and Facilitation to Parties in Implementing the Kyoto Protocol (1 August 2017) UN Doc CC/FB/20/2017/2.
Kyoto Protocol Compliance Committee, Tenth Annual Report of the Compliance Committee to the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol (18 September 2015) UN Doc FCCC/KP/CMP/2015/3.
Kyoto Protocol Compliance Committee – Enforcement Branch, Report on the Twenty-Sixth Meeting, held on 5 March 2015 (24 March 2015) UN Doc CC/EB/26/2015/2.
Kyoto Protocol Compliance Committee – Facilitative Branch, Report on the Eleventh Meeting, held from 6 to 8 February 2012 (27 February 2012) UN Doc CC/FB/11/2012/2.
Kyoto Protocol Compliance Committee – Facilitative Branch, Report on the Twelfth Meeting, held from 22 to 23 October 2012 (9 November 2012) UN Doc CC/FB/12/2012/3.
London Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (adopted 7 November 1996, entered into force 24 March 2006) 36 ILM 1 (1997).
Minamata Convention on Mercury (adopted 10 October 2013, entered into force 16 August 2017) C.N.560.2014.TREATIES-XXVII.17.
Montreal Protocol on Substances that Deplete the Ozone Layer (adopted 16 September 1987, entered into force 1st January 1989) 1522 UNTS 3.
Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (adopted 15 October 2010, entered into force 5 March 2018).
Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UNTS XXVII.7.d.
Paris Agreement CMA Decision 18/CMA.1, ‘Modalities, procedures and guidelines for the transparency framework for action and support referred to in Article 13 of the Paris Agreement’ (3–14 December 2018) UN Doc FCCC/PA/CMA/2018/3/Add.2.
Paris Agreement CMA Decision 19/CMA.1, ‘Matters relating to Article 14 of the Paris Agreement and paragraphs 99–101 of decision 1/CP.21’ (3–14 December 2018) UN Doc FCCC/PA/CMA/2018/3/Add.2.
Paris Agreement CMA Decision 20/CMA.1, ‘Modalities and procedures for the effective operation of the committee to facilitate implementation and promote compliance referred to in Article 15, paragraph 2, of the Paris Agreement’ (3–14 December 2018) UN Doc FCCC/PA/CMA/2018/3/Add.2.
Rio Declaration on Environment and Development (14 Jun 1992) UN Doc UN Doc A/CONF.151/5/Rev.1; UN Doc A/CONF.151/26/Rev.1 Vol. 1, Annex I.
Stockholm Convention on Persistent Organic Pollutants (adopted 22 May 2001, entered into force 17 May 2004) 2256 UNTS 119 (‘Stockholm Convention’).
Stockholm Convention Conference of Parties, Decision SC-3/20, Non-Compliance (30 April–4 May 2007) UN Doc UNEP/POPS/COP.3/30.
United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (‘UNFCCC’).
UNFCCC COP Decision 1/CP.21, Adoption of the Paris Agreement (30 November–11 December 2015) UN Doc FCCC/CP/2015/L.9 and Rev.1.
UNFCCC COP Decision 10/CP.4, Multilateral Consultative Process (2–14 November 1998) UN Doc FCCC/CP/1998/16/Add.1.
UNFCCC COP Decision 1/CP.16, The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (29 November–10 December 2010) UN Doc FCCC/CP/2010/7/Add.1.
Appeal of the Republic of Croatia, Kyoto Protocol CMP, 19 February 2010, Annex to Doc FCCC/KP/CMP/2010/2.
Decision under Paragraph 2 of Section X, Kyoto Protocol Compliance Committee, Enforcement Branch, 4 February 2011, CC-2010-1-17/Bulgaria/EB.
Urgenda Foundation v The State of the Netherlands, Judgment, Rechtbank Den Haag (District Court The Hague), 24 June 2015, ECLI:NL:RBDHA:2015:7145.