Compliance and Enforcement
Chapter Fifty-Nine
Syllabus topic 3, "International Concern for Environment Protection"
Pages 175 to 177 of 663
In one line
MU asks about compliance and enforcement together, and the useful answer is that environmental treaties have a great deal of the first and almost none of the second, and that this is a design choice rather than an accident.
In exam wording: compliance is the state of a Party's conduct conforming to its obligations; implementation is the adoption of national measures giving effect to them; effectiveness is whether the environmental problem is solved; and enforcement is the imposition of a consequence for failure. Multilateral environmental agreements concentrate on compliance and implementation through reporting, review, assistance and finance, and use enforcement sparingly, principally through trade restrictions and the suspension of treaty privileges.
The four words, which are not synonyms
| Word | Question it answers |
|---|---|
| Implementation | Has the Party passed the laws and set up the machinery? |
| Compliance | Is the Party's conduct conforming to the obligation? |
| Effectiveness | Is the environmental problem being solved? |
| Enforcement | What happens if it is not? |
A Party can implement without complying, by passing a law it does not apply. It can comply without the regime being effective, if the obligations were too weak. Getting these four apart in the first paragraph is worth marks.
The compliance toolkit, ranked by how much work it does
One: reporting. Every regime requires it. Article 12 of the Framework Convention; Article 13 of the Basel Convention; Article 7 of the Montreal Protocol; Article 26 of the biodiversity convention; Article 15 of the Stockholm Convention. Reporting is the foundation: without data there is nothing to review.
Two: review. The reports are examined, by the secretariat, by a subsidiary body, or by other Parties. Article 13 of the Paris Agreement's transparency framework includes technical expert review and a facilitative multilateral consideration of progress. Articles 20 to 25 of the Convention on Nuclear Safety require Parties to submit national reports for peer review at review meetings, which is the purest form of the technique.
Three: assistance and finance. Because inability is the common cause. The Multilateral Fund under Article 10 of the Montreal Protocol is the outstanding example.
Four: the non-compliance procedure. Its own chapter.
Five: trade restriction. Article 4 of the Montreal Protocol against non-Parties; Article 4, paragraph 5, of the Basel Convention. This is the sharpest instrument in the toolkit and it is aimed principally at States outside the regime rather than at Parties in breach.
Six: dispute settlement. Present in every convention and used almost never.
Seven: State responsibility. Available in principle, never invoked in practice for a multilateral environmental agreement.
Why enforcement is so thin
Four reasons, and a good answer gives all four.
- There is often no injured State. Ozone depletion injures everybody and nobody in particular, so nobody has the standing or the incentive to sue.
- Causation is hard. For a diffuse and cumulative harm, attributing a share to one Party's conduct is close to impossible.
- A sanction against an unable Party is counter-productive. Suspending the treaty rights of a State that cannot afford a licensing system makes compliance less likely.
- The regimes are long-term relationships. Parties must keep negotiating with each other for decades. A litigation culture would poison that, which is exactly the reasoning behind Article 15 of the Paris Agreement.
Compliance and Enforcement
Where enforcement does exist
| Regime | Enforcement | Against whom |
|---|---|---|
| Montreal Protocol | Trade ban under Article 4; suspension of privileges | Non-Parties, and Parties in persistent non-compliance |
| Basel Convention | Prohibition on trade with non-Parties, Article 4, paragraph 5 | Non-Parties |
| CITES | Recommendation to suspend trade in listed species | A Party, and it has been used repeatedly |
| Kyoto Protocol | Deduction from the next period's assigned amount at a penalty rate; loss of eligibility for the mechanisms | Annex I Parties |
| Law of the Sea Convention | Compulsory dispute settlement under Part XV | Any Party |
| European Union | Infringement proceedings and financial penalties | Member States |
CITES is worth naming because its trade suspension recommendation has been applied to Parties on many occasions, which makes it the most frequently enforced environmental treaty in the world.
Worked example
A Party has not submitted a report for four years and its imports of a controlled substance are rising.
- Reporting has failed, so the regime is blind.
- The secretariat raises it, and the trade data of other Parties supply the missing information. Mirror statistics are how this is usually detected.
- Assistance is offered: a licensing system, funded.
- The compliance committee agrees a plan with benchmarks.
- If nothing changes, the Meeting of the Parties issues a caution and, ultimately, suspends the Party's access to the fund and to trade in the controlled substances.
- What is not done: no State sues, no countermeasures are taken, no compensation is sought.
The honest assessment
The ozone regime achieved near-universal compliance with almost no enforcement. The climate regime has near-universal participation and rising emissions. The difference is not the enforcement machinery, which is weak in both, but the cost and availability of the alternative: there were substitutes for chlorofluorocarbons and there is no substitute for energy.
That sentence is the best single answer to a question about compliance and enforcement, because it says what the machinery can and cannot do.
Quick revision
- Four distinct words: implementation, compliance, effectiveness, enforcement.
- Toolkit: reporting, review, assistance and finance, non-compliance procedure, trade restriction, dispute settlement, State responsibility.
- Enforcement is thin because there is no injured State, causation is hard, sanctions are counter-productive against inability, and the relationships are long-term.
- CITES trade suspensions are the most frequently used enforcement measure in the subject.
- Compliance follows the availability of an affordable alternative more than it follows the sanction.
Compliance and Enforcement
Test yourself
1. Distinguish implementation, compliance and effectiveness. Implementation is the adoption of national measures; compliance is conduct conforming to the obligation; effectiveness is whether the environmental problem is actually solved. A Party can implement without complying and comply without the regime being effective.
2. Give four reasons why environmental treaties do not rely on enforcement. There is often no injured State; causation for diffuse harm is very hard; sanctions worsen non-compliance caused by inability; and the Parties are in a long-term relationship that adversarial procedure would damage.
3. Which environmental treaty's enforcement measure is used most often, and what is it? CITES. Its standing committee recommends that Parties suspend trade with a Party in listed species, and the recommendation has been made on many occasions.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.