Categories: Climate Article 5

Introduction

In September 1997, we shall be celebrating the tenth anniversary of the adoption of the Montreal Protocol on Substances that Deplete the Ozone Layer. Towards the middle of that instrument is an unusual provision - unusual in that earlier multilateral environmental agreements contained nothing like it. I refer to Article 8 which provided that: "The Parties, at their first meeting, shall consider and approve procedures and institutional mechanisms for determining non-compliance with the provisions of this Protocol and for treatment of Parties found to be in noncompliance." It is fair to say that no-one at the time of negotiation had a very clear idea of what this provision could, or should, lead to, but the Working Group convened to draw up the "procedures and institutional mechanisms" recognised that in the context of ozone layer depletion prevention has to be preferred to cure and soon identified a compliance gap between the Protocol's data reporting requirement and its dispute settlement Article that ought to be filled if the treaty was to operate with maximum efficiency.

The compliance regime developed for the Montreal Protocol2 is frequently spoken of as a major success and in a number of ways it undoubtedly has been. The Parties have agreed to their compliance with the Protocol's obligations being scrutinised by a Committee composed of a cross-section of fellow Parties. They have accepted that such scrutiny may be triggered by a Party or by the Secretariat. They are prepared for the Committee to ask them searching questions about their performance and to advise them on ways of entering into (or coming back into) full compliance. They have even accepted that the Committee should be able to make recommendations to the Meeting of the Parties on the basis of which the Meeting may adopt decisions which could be critical of them. No multilateral environmental agreement had ever before resulted in such an intrusive compliance control regime. This marks it out as a noteworthy development, as does the fact that the Implementation Committee established to operate the regime has met some 16 times since 19905 and in the process has reviewed a large amount of reported data brought to its attention, principally by the Secretariat.

It is easy, however, to be too sanguine about the achievements of the regime. The harsh fact is that after six years of operation it remains difficult to measure precisely how much of significance has been achieved by the Implementation Committee. Merely checking whether Parties have submitted complete annual reports under Article 7, and goading them into doing so when they have not, is necessary and useful but hardly in itself a demonstration of better compliance. More telling yardsticks have been the Committee's recent sustained efforts to encourage and assist various central and east European countries to fulfil their Protocol obligations. These have met with mixed success, at least where the Russian Federation is concerned. It is important for the credibility and effectiveness of the Protocol that its compliance regime is seen to improve Parties' observance of their obligations. Only when it does this, will the reputation of the regime, of its Committee and of the Protocol itself be assured.

Compliance regime

Notwithstanding the absence of a proven record of delivering significant results, the Montreal Protocol's compliance regime continues to be referred to in environmental circles as an important development that could, with advantage, be copied by other multilateral environmental agreements. Some have taken this advice very literally. For instance, two of the Protocols to the UNIECE's Convention on Long-Range Transboundary Air Pollution (the Geneva Convention), those concerning the control of emissions of volatile organic compounds (VOCs) and the further reduction of sulphur emissions, contain provisions very similar to that of Article 8 of the Montreal Protocol. In the latter case, indeed, a complete compliance regime was negotiated in parallel with the Protocol and the key elements of it were entrenched in the agreement itself. Currently, the Executive Body of the Geneva Convention is studyinf:' by means of a small Expert Group on Implementation, whether, and if so how, the Montreal model could be applied and operated for the benefit of all the Convention's Protocols - existing, in the pipeline and yet to be developed. The initial conclusion of the Expert Group is that a single regime could be developed, that it would best take the form of a decision of the Executive Body (not a series of amendments or a new Protocol) and that, subject to countries not being permitted to participate in cases in respect of Protocols to which they are not a party, there is no reason why a single Implementation Committee should not deal with casework under all the Protocols.

The fact that the Parties to the Geneva Convention have already on two occasions adopted the Montreal model almost in its entirety is not a reflection of lack of imagination or laziness on their parts. Those involved were well aware of the arguments in favour of tailoring compliance regimes to the particular circumstances of individual environmental agreements. They found, however, not only that the Montreal model was structurally a sound one but also that the obligations in the two instruments were precise enough to justify applying a very similar process. This contrasts with the Biodiversity Convention and the Desertification Convention, neither of which contains commitments of a sufficiently precise or focused nature to enable a compliance regime to operate meaningfully and it could well explain why neither of these two treaties includes a provision establishing a compliance regime or requiring one to be developed.

The Basle Convention, too, does not contain provision for a compliance regime, but the reasons for the omission in that case must be different for its procedural requirements are very clear and precise. First, the Basle Convention pre-dates the realisation by States that something more than data reporting requirement and a settlement of disputes Article are required for the effective supervision of compliance with the commitments in multilateral environmental agreements. Secondly, the purpose of the obligations in the Basle Convention is to protect individual Parties from harm rather than to avoid damage to the world as a whole. Thirdly, individual shipments of hazardous wastes that breach the Convention's terms are more likely to result from "malice or greed" on the part of an individual trader than of any technical inability by a Party to operate national control measures. Fourthly, in the case of illegal traffic in hazardous wastes, polluter and victim are easier to identify than in the case of, say, depletion of the ozone layer or emissions of sulphur. The Montreal Protocol's compliance regime, or procedures like it, would seem to have little practical relevance to the factual circumstances that the Basle Convention seeks to address. Whilst one can see that, unlike in the case of the Montreal Protocol, here could be a role under the Basle Convention for the operation of a liability regime and how observance of the Convention's requirements might be enhanced by the liability and compensation Protocol that is currently under negotiation, one is left wondering what need, or role, there is for the Convention to have a compliance regime as well; the terms of such a regime are, however, being considered by the Parties in a parallel exercise.

One other recent multilateral environmental agreement contains a provision regarding compliance: the Climate Change Convention. It, however, lays down a requirement that, whilst superficially similar to Article 8 of the Montreal Protocol, is more opaque. It provides in Article 13 that the Conference to the Parties: "shall, at its first session, consider the establishment of a multilateral consultative process, available to Parties on their request, for the resolution of questions regarding the implementation of the Convention."

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