Triggering Non-Compliance Procedures

Electronic copy available at: http://ssrn.com/abstract=1953505

373triggering

Chapter Twenty-One

Triggering Non-Compliance Procedures

Francesca Romanin Jacur

1. Introduction

Although non-compliance procedures are conceived as facilitative means to help States facing compliance difficulties in respecting their obligations under MEAs, the way they are set in motion is perceived as a politically sensitive matter by the States involved. In fact, in the course of the procedure, there may be a disclosure of sensi-tive information, which may become known to other States or attract the attention of public opinion and States generally prefer to avoid this situation. This is one of the main reasons why the triggering of non-compliance procedures is a delicate issue that is highly debated during the negotiations of these mechanisms.1

Under some MEAs the mandate of compliance bodies, in broad terms, includes various functions such as, inter alia, the provision of advice to non-Parties wishing to become Parties,2 the consideration of general problems of implementation which have not yet emerged as specific cases of non-compliance, and the adoption of recommen-dations on possible solutions to cases of persistent non-compliance.

Consideration of these matters by compliance bodies is generally demanded by COPs or is undertaken proprio motu by compliance committees.3

1 A. Shibata, “The Basel Compliance Mechanism”, 12 RECIEL (2003) 183–198, at 185. This is con-firmed by the recurring square brackets on triggering related matters in many non-compliance procedures currently under negotiation.

2 Under the London Convention NCP (Compliance Procedures and Mechanisms Pursuant to Article 11 of the 1996 Protocol to the London Convention 1992, doc. LC 29/17(14 December 2007), Annex 7), para. 2.2.8 the Committee may “upon request of a non-Party, provide advice and guidance to facilitate its becoming a Party to the Protocol”.

3 See, for example, Basel Convention NCP (Decision VI/12 on Establishment of a Mechanism for Pro-moting Implementation and Compliance, Appendix, doc. UNEP/CHW.6/40 (10 February 2003), at 45), para. 21: “The Committee shall, as directed by the Conference of the Parties, review general issues of com-pliance and implementation under the Convention relating to, inter alia: (a) Ensuring environmentally sound management and disposal of hazardous wastes;” and Stockholm POPs Convention Draft NCP (Decision SC-3/20 on Non-Compliance, doc. UNEP/POPS/COP.3/30 (4 May 2007), Annex, at 57), para. 32: “The Committee may examine systemic issues of general compliance and implementation of interest to all Parties when: (a) The Conference of the Parties so requests; (b) The Secretariat, while acting pursuant to its func-tions under the Convention, obtains information from Parties on the basis of which the Committee decides

T. Treves et al., eds., Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements© 2009, t.m.c. Asser Press, The Hague, The Netherlands, and the Authors

Electronic copy available at: http://ssrn.com/abstract=1953505

374 francesca romanin jacur – chapter 21

These issues, however, present a set of radically different aspects compared to the procedures dealing with specific cases of non-compliance and are beyond the scope of the present analysis which will focus, firstly, on the different subjects entitled to set in motion the procedures with regard to specific situations of non-compliance; sec-ondly, on some procedural aspects of the triggering phase; and, finally, on require-ments that need to be fulfilled for submissions to be admissible.

2. Subjects Entitled to Set in Motion Non-Compliance Procedures

Among the different subjects that may trigger the procedure, usually there are the Parties which can trigger it with regard to themselves and with regard to other Parties, and the Secretariat; in some exceptional cases, procedures may be triggered also by other organs of the MEA, observers or members of the public.

2.1 Self Trigger

The rationale of non-compliance procedures being facilitative and preventive means is the main reason why all these procedures recognize the right of Parties to bring a case regarding their own implementation problems to the attention of the competent bodies.4

This way of triggering the procedure has frequently been used in practice, espe-cially under MEAs whose compliance mechanisms have adopted a facilitative approach and therefore encourage Parties to go to compliance bodies confident that they will receive technical and financial assistance. Another way to encourage the self trigger is to assure the confidentiality of information contained in self-submis-sions of Parties, as provided in the Aarhus Convention non-compliance procedure.5

that there is a need for an issue of general non-compliance to be examined and for a report thereon to be made to the Conference of the Parties; (c) The Secretariat draws the attention of the Committee to relevant information it has obtained through reports by Parties under the Convention and other sources.”

4 Aarhus Convention NCP (Decision I/7 on Review of Compliance, doc. ECE/MP.PP/2/Add.8 (2002, subsequently issued on 2 April 2004)), para. 16; Alpine Convention NCP (Decision VII/4 Mécanisme de verification du respect de la Convention alpine et de ses protocols d’application (Seventh Alpine Confe-rence, 2002), reprinted in 33 Envt’l Po’y & L. (2003) 179), para. 2.2; Basel Convention NCP, para. 9(a); Cartagena Protocol NCP (Decision BS-I/7 on Establishment of Procedures and Mechanisms on Compli-ance under the Cartagena Protocol on Biosafety, doc. UNEP/CBD/BS/COP-MOP/1/15 (27 February 2004), Annex I, at 98), section IV.1(a); Espoo Convention NCP (Decision II/4 on Review of Compliance, doc. ECE/MP.EIA/4 (7 August 2001), Annex IV, at 72 revised by Decision III/2 on Review of Compliance, doc. ECE/MP.EIA/6 (13 September 2004), Annex II (consolidated text)), para. 4(b); Kyoto Protocol NCP (Deci-sion 27/CMP.1 on Procedures and Mechanisms Relating to Compliance under the Kyoto Protocol, doc. FCCC/KP/CMP/2005/8/Add.3 (30 March 2006), at 92), section VI.1(a); Montreal Protocol NCP (Deci-sion IV/5 on Non-Compliance Procedure, doc. UNEP/OzL.Pro.4/15 (25 November 1992), at 13, subse-quently amended by Decision X/10 on Review of the Non-Compliance Procedure, doc. UNEP/OzL.Pro.10/9 (3 December 1998), at 23 and consolidated text in Annex II, at 47), para. 4; Rotterdam PIC Convention Draft NCP (Decision RC-3/4 Draft text of the Procedures and Mechanisms on Compliance with the Rotterdam Convention, doc. UNEP/FAO/RC/COP.3/26 (10 November 2006), Annex, at 27), para. 12(a); Stockholm POP Convention Draft NCP, para. 17(a).

5 Aarhus Convention NCP, para. 28.

375triggering

The practice, however, has shown that the good will of Parties confessing their dif-ficulties to compliance bodies is not always rewarded as expected. This is what hap-pened to the Russian Federation under the Montreal Protocol. Notwithstanding the positive and collaborative approach, at least on a formal level, of the non-complying State,6 the MOP, upon recommendation of the Implementation Committee, while deciding financial assistance, also adopted punitive measures consisting of the prohi-bition to trade ozone depleting substances with countries not Parties of the Common-wealth of Independent States.

2.2 Party-to-Party Trigger

The power of a Party to start the procedure against another Party is foreseen by all non-compliance procedures7 but it is not frequently used because of its “adversarial” nature, which does not fit well within the amicable nature of non-compliance mecha-nisms. Moreover, it is often difficult for Parties to become aware of the level of com-pliance in other States unless, as we will see, the lack or incorrect implementation of the MEA directly affects the State willing to trigger the procedure.

This way of triggering the non-compliance procedure is envisaged with different characteristics depending on the type of MEA and on the nature of the obligations assumed by the Parties.

Treaties addressing global environmental problems, such as ozone layer depletion or climate change, have a universal dimension: they aim at protecting the human community from a threat whose solution depends on a joint and collective response on behalf of the international community. Obligations arising from these MEAs entail a shared responsibility of Member States and, on the other side, they constitute obli-gations erga omnes partes, i.e., which are owed to all Parties and therefore, in the case of treaty violation or non-compliance, there is no single injured State since all States Parties to the MEA are concerned.

The triggering system of non-compliance procedures under these MEAs reflects the structure of their obligations: the triggering Party does not need to demonstrate that it has a specific interest which is, or may be, hampered by lack of compliance by another Party.8

A different structure may be envisaged with regard to MEAs which, although addressing matters having a global environmental dimension, contain obligations of a bilateral nature. This is the case of MEAs whose implementation involves

6 See J. Werksman, “Compliance and Transition: Russia’s Non-Compliance Tests the Ozone Regime”, ZaöRV, 56 (1996) 750–773 and reference therein, at 758, noting that: “[a]t no point since its difficulties became manifest has Russia forsworn the objectives and principles of the Ozone regime.”

7 See, for example, Basel Convention NCP, para. 9(b); Kyoto Protocol NCP, section VI.1(b); Montreal Protocol NCP, para. 1; Cartagena Protocol NCP, section IV.1(b).

8 This is reflected in the relevant provisions, stating merely that the Party that has “reservations regard-ing another Party’s implementation of its obligations” may address those “concerns” to the Secretariat. See Montreal Protocol NCP, para. 1 and Kyoto Protocol, section VI.1(b): “The Committee shall receive, through the Secretariat, […] questions of implementation submitted by [a]ny Party with respect to another Party, supported by corroborating information.”


transboundary relations both of an intentional − for example commercial − and of an accidental nature.9

Under these MEAs a Party willing to initiate the procedure against another Party is required to demonstrate that it has an individual interest affected by the failure to comply and, in certain cases, that there is a direct relation between itself and the other Party involved.10

Other issues relate to whether only a single Party is entitled to start the procedure and only with regard to another one, or if also more Parties, for example grouped together, may be legitimated to refer a matter concerning more States considered in alleged non-compliance.

While some non-compliance mechanisms expressly state that “one or more Par-ties” may bring a submission to the compliance bodies,11 others do not contain clear provisions on this issue.

This situation was addressed by the Facilitative Branch of the Kyoto Protocol when a submission was brought to it by South Africa, on behalf of the Group of 77 and China, against various Parties for failure to communicate national reports. The Branch was unable to take a decision on whether to proceed or not to proceed with the matter for several reasons.12

9 A first example may be provided by CITES, which aims at protecting biodiversity by limiting the exploitation of endangered species through the control of trade in products deriving from them; other exam-ples of treaties whose implementation is highly dependent on bilateral inter-state relations are the Basel and the Rotterdam PIC Conventions. Among MEAs concerned with the accidental movement across borders of dangerous substances there is the Stockholm POPs Convention and with regard to genetically modified organisms, the Cartagena Protocol.

10 Basel Convention NCP, para. 9(b): “A Party that has concerns or is affected by a failure to comply with and/or implement the Convention’s obligations by another Party with whom it is directly involved under the Convention.” See A. Fodella, “Mechanism for Promoting Implementation and Compliance with the 1989 Basel Convention on the Transboundary Movements of Hazardous Wastes and Their Disposal”, supra 33–48, at 39; Cartagena Protocol NCP, section IV.1 (b): “The Committee shall receive, through the Secretariat, any submissions relating to compliance from: […] (b) Any Party, which is affected or likely to be affected, with respect to another Party.”; Rotterdam PIC Convention Draft NCP, para. 12: “Submissions may be made in writing, through the secretariat […] by: [(b) A Party that has concerns or is affected by a failure to comply with the Convention’s obligations by another Party [with which it is directly involved under the Convention]”; Stockholm POP Convention Draft NCP, para. 17: “Submissions to the Committee may be made by: […][(b) A Party that is affected or may be affected by another Party’s difficulties in complying with the Convention’s obligations]”. Shibata notes that the use of the terms “failure to comply” in the Basel and in the PIC Convention non-compliance procedures may entail a higher threshold for the triggering of the procedure by the Party affected compared to other texts referring to “difficulties in complying”. See Shibata, supra n. 1, at 190.

11 See, for example, the Espoo Convention NCP, para. 5(a); Aarhus Convention NCP, section IV.15; Water and Health Protocol NCP, section IV.14; PRTR Protocol NCP (Draft Decision on Review of Compli-ance, doc. ECE/MP.PP/AC.1/2007/L.10 (18 July 2007)), section IV.15; LRTAP Convention NCP (Decision 1997/2 Concerning the Implementation Committee, its Structure and Functions and Procedures for Review of Compliance, doc. ECE/EB.AIR/53 (7 January 1998), Annex III, at 28, subsequently amended. Consoli-dated text in Decision 2006/2 on Implementation Committee, its Structure and Functions and Procedures for Review, doc. ECE/EB.AIR/89/Add.1 (5 February 2007), at 4), para. 4(a); Montreal Protocol NCP, para. 1.

12 See R. Lefeber, “The Practice of the Compliance Committee under the Kyoto Protocol to the United Nations Framework Convention on Climate Change (2006–2007)”, supra 303–317, at 311.

377triggering

As regards the proponents of the triggering, it is interesting to note that the admis-sibility of the submission was denied also because, in the view of the Facilitative Branch

“The communication was not submitted by a Party on its own behalf through a representa-tive duly authorized for this purpose. The procedures and mechanisms do not provide for the possibility of groups of Parties making submissions by proxy nor give the facilitative branch a mandate to consider any question of implementation that has not been duly sub-mitted in accordance with section VI.1 of the annex to decision 27/CMP.1.”13

On the side of the Parties in respect of which the submission is made the Facilitative Branch considered, in the same decision, that

“The submission does not clearly and individually name the Parties with respect to which it purports to raise a question of implementation.”

The approach adopted by the Facilitative Branch on these specific points seems too formalistic, considering that non-compliance mechanisms do not regulate in detail the various steps and procedural requirements of the triggering phase and are generally inspired by flexibility in the interpretation of the rules governing their procedures.

Moreover, the identification of the alleged non-complying Parties could be easily made by looking at what national communications the Secretariat did not receive. In fact, the Secretariat itself, as mentioned by the same decision, had already identified the Parties concerned.14

The Branch concludes its decision not to proceed by making clear that:

“This decision not to proceed is without prejudice to the right of any Party to submit a question of implementation with respect to the same matter through its duly authorized representatives.”15

2.3 Trigger by organs of the MEA

a) Secretariat

The Secretariat collects, analyzes and files relevant data, information and documenta-tion received from the Parties and, in so doing, it may become aware of situations of non-compliance.

This is why a Secretariat trigger has been accepted in many MEAs, although exceptions exist of non-compliance procedures that may be initiated only by Parties

13 Report of the Compliance Committee on the Deliberations in the Facilitative Branch Relating to the Submission Entitled “Compliance with Article 3.1 of the Kyoto Protocol” (CC-2006-1/FB to CC-2006-15/FB), doc. CC-2006-15-2/FB, para. 4(a).

14 The decision sounds somehow contradictory in that, on the one hand it says that the submission lacks precision because it fails to name the Parties in alleged non-compliance but, on the other, it demands the Secretariat to notify the decision to Austria, Bulgaria, Canada, France, Germany, Ireland, Italy, Latvia, Liechtenstein, Luxembourg, Poland, Portugal, Russia, Slovenia and Ukraine.

15 Ibid., para. 4(c).


and where the Secretariat has nevertheless an important role because it provides use-ful information to COPs or compliance committees.

Under the Cartagena Protocol, for example, a triggering power of the Secretariat, although taken into consideration during the negotiation of the non-compliance mech-anism, has not been included in the final text.16

A compromise solution consists of limiting its triggering function with regard to compliance only with certain obligations, namely the reporting ones, and in identify-ing the sources of information the Secretariat may rely on and may use when trigger-ing the procedure.

With regard to the first matter, while some non-compliance procedures do not specify with respect to what kind of obligations the Secretariat may trigger the proce-dure and therefore a broad scope of the triggering power should be recognized,17 others stipulate that only compliance with reporting obligations may be the subject of the Secretariat’s trigger.18

As regards the second issue, there are procedures requiring the Secretariat to use only information contained in documents provided by the Parties or acquired while preparing its reports,19 while others say that the Secretariat may become aware of situ-ations of non-compliance, inter alia, through examination of the Parties’ reports,20 but

16 See C. Ragni, “Procedures and Mechanisms on Compliance under the 2000 Cartagena Protocol on Biosafety to the 1992 Convention on Biological Diversity”, supra 101–120, and reference therein to Compli-ance ( Article 34), Synthesis of Views Regarding Elements and Options for a Compliance Regime, Note by the Executive Secretary, doc. UNEP/CBD/ICCP/2/13 Add.1 (17 July 2001), para. 23. Also the Kyoto Protocol NCP may only be triggered by Parties.

17 Montreal Protocol NCP, para. 3: “Where the Secretariat […] becomes aware of possible non-compli-ance by any Party with its obligation under the Protocol, […]”. Similar provisions are LRTAP Convention NCP, para. 5; Aarhus Convention NCP, para. 17.

18 Basel Convention NCP, para. 9(c): “The secretariat, if, while acting pursuant to its functions under articles 13 and 16, it becomes aware of possible difficulties of any Party in complying with its reporting obligations under article 13, paragraph 3 of the Convention […]”. An analogous limited trigger, if accepted in the final text, could characterize also the Rotterdam PIC Convention Draft NCP, para. 12: “[(c) The secre-tariat, if, while acting pursuant to its functions under [articles 4, 5, and 10 of] the Convention, it becomes aware of possible difficulties for any Party in complying with its obligations under [articles 4, 5, and 10 of] the Convention […].”

19 Barcelona Convention NCP (Decision IG 17/2 on Procedures and Mechanisms on Compliance under the Barcelona Convention and its Protocols, doc. UNEP(DEC)/MED IG. 17/10 (18 January 2008) (the Almeria Report), Annex 5, at 21), para. 23: “If the Secretariat becomes aware from the periodic reports referred to in Article 26 of the Convention and any other reports submitted by the Parties that a Party is facing difficulties in complying with its obligations under the Convention and its Protocols […]”(empha-sis added); Montreal Protocol NCP, para. 3: “Where the Secretariat, during the course of preparing its report, becomes aware of possible non-compliance by any Party with its obligation under the Protocol, […]”(emphasis added). Similar provisions are found in the Water and Health Protocol NCP, section V.15; Basel Convention NCP, para. 9(c); Stockholm POPs Convention Draft NCP, para. 17(c); Rotterdam PIC Convention Draft NCP, para. 12(c). Shibata, supra n. 1, at 191 notes that: “The purpose of this restriction is to limit the authority of the Secretariat so that it will not actively investigate and search for possible compli-ance difficulties faced by parties.”

20 A standard provision in this sense is the Aarhus Convention NCP, para. 17: “Where the secretariat, in particular upon considering the reports submitted in accordance with the Convention’s reporting require-ments, becomes aware of possible noncompliance by a Party with its obligations under the Convention […]” (emphasis added). See also LRTAP Convention NCP, para. 5, PRTR Protocol NCP, para. 17.

379triggering

do not exclude that other sources, such as data from other organs of the Convention, competent international organizations or NGOs or even autonomous investigations, may be used.

While earlier non-compliance procedures have been cautious in opening the proce-dure to external information, the more recent ones seem to acknowledge the growing importance of coordinating their action with the expertise of other international organizations, also of a non-governmental nature. The Rotterdam PIC Convention Draft non-compliance procedure envisages the possibility – albeit in square brackets, indicating that agreement has not yet been reached on this matter − for the Secretariat to receive “submissions from individuals or organizations having reservations about a Party’s compliance with its obligations under the Convention.”21

b) The Committee

Initiative by the compliance body is rarely foreseen by non-compliance procedures because of the negative impact this trigger has on the impartiality of the procedure.22

At present only the Espoo and the Aarhus Conventions non-compliance procedures provide for such a triggering function of the compliance committee,23 and it might be accepted under the Stockholm POPs Convention Draft non-compliance procedure.24

c) The COP

The COP is entitled to directly trigger the procedure under the ITPRGFA and the London Dumping Convention.25

d) Other Subsidiary Organs

Compliance procedures may in rare cases be triggered by other organs established under the treaty regime.

Some MEAs, such as the Montreal Protocol, considered this option but finally pre-ferred to limit the role of subsidiary and technical organs to providing complementary information to the Secretariat while drafting its triggering report.26

21 Rotterdam PIC Convention Draft NCP, para.12(c). 22 M. Goote and R. Lefeber, “Compliance Building under the International Treaty on Plant Genetic

Resources for Food and Agriculture”, Background Study Paper 20 (UNEP), at 11: “Such right would create a situation where the compliance body would become a ‘judge’ in its own case and the compliance body may therefore not be perceived as an impartial body in such a case.”

23 Espoo Convention NCP, para. 6; Aarhus Convention NCP, para. 14. 24 Stockholm POPs Convention Draft NCP, para. 17(c alt).25 ITPRGFA Draft NCP (Draft Procedures and Operational Mechanisms to Promote Compliance and

to Address Issues of Non-Compliance, doc. IT/GB-2/07/14 (2 November 2007)), section.V.1(c); London Dumping Convention NCP, para. 4.1.1.

26 During the review of the non-compliance procedure there was a proposal to allow the Secretariat of the Multilateral Fund, the Implementing Agencies and other actors, who are in a strategic position to achieve relevant information, to bring non-compliance cases to the Implementation Committee. See Report of the Ad Hoc Working Group of Legal and Technical Experts on Non-Compliance with the Montreal Protocol, doc. UNEP/OzL.Pro/WG.4/1/3 (18 November 1998), para. 3 and F. Romanin Jacur, “The Non-Compliance


The Kyoto Protocol system introduces an innovative element in this regard, because here

“The Committee shall receive, through the secretariat, questions of implementation indi-cated in reports of expert review teams under Article 8 of the Protocol, together with any written comments by the Party which is subject to the report […].”27

Expert review teams are groups of independent experts, which may be representatives of the Parties but also of international and non-governmental organizations, selected by the Secretariat.28 Their mandate is to conduct a “thorough and comprehensive tech-nical assessment” of the reports of States engaged in reducing their greenhouse gases emissions and submit the outcomes of their analysis to the compliance committee. 29

The fact that expert review teams submit their assessments to the committee repre-sents a very important element which can contribute to the success of the Kyoto Pro-tocol compliance system.30

Recently the first question of implementation was identified by an expert review team with regard to Greece.31

2.4 Trigger by Non-State Actors

The right to initiate the procedure could also be attributed to international and non-governmental organizations competent in the subject dealt with by the treaty.

With regard to this kind of trigger, different approaches have been adopted at the global level and at the regional level, mainly in the framework of UNECE treaties. In fact, while the issue of allowing NGOs the possibility of starting the procedure was considered also during the negotiations of non-compliance mechanisms under MEAs of a global relevance, to date only treaties with a regional application, or with a par-ticular vocation,32 have agreed to open the procedure to non-State actors, such as NGOs, observers and, in some cases, even individuals.

Procedure of the 1987 Montreal Protocol to the 1985 Vienna Convention on Substances that Deplete the Ozone Layer”, supra 11–32, at 21.

27 Kyoto Protocol NCP, section VI.1. 28 On expert review teams, see G. Ulfstein and J. Werksman, “The Kyoto Compliance System: Towards

Hard Enforcement”, in O. Stokke, J. Hovi and G. Ulfstein (eds.), Implementing the Climate Regime: Inter-national Compliance (London [etc]: Earthscan, 2005) 39–62, at 43.

29 Kyoto Protocol, Art. 8.2. On the negotiating history related to the role of expert review teams, see X. Wang and G. Wiser, “The Implementation and Compliance Regimes under the Climate Change Conven-tion and its Kyoto Protocol”, 11 RECIEL (2002) 181–198, at 194.

30 Ulfstein and Werksman, supra n. 28, at 43 consider that: “[…] most questions of implementation presented to the Compliance Committee will be contained in the reports of the expert review teams. Ensur-ing that the expert review teams operate in an effective and unbiased manner will therefore be essential to the system’s integrity.”

31 See Lefeber, supra n. 12, at 315; S. Urbinati, “Procedures and Mechanisms Relating to Compliance under the 1997 Kyoto Protocol to the 1992 United Nations Framework Convention on Climate Change”, supra 63–84, at 83 and M. Fitzmaurice, “Non-Compliance Procedures and the Law of Treaties”, infra 453–481, at 479.

32 The Aarhus Convention, for example, aims at the protection of rights of individuals related to the environment.

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For example, while under the Basel and the Cartagena systems Parties rejected the trigger by NGOs, under the Alpine Convention33 and most of the UNECE treaties, such as the Aarhus Convention and its related PRTR Protocol and Water and Health Protocol, NGOs and observers are empowered to submit communications regarding potential non-compliance situations to the compliance bodies.34

Some of these latter systems envisage an original and progressive solution: the public trigger.35

According to the relevant provisions adopted by the COP of the Aarhus Conven-tion, members of the public are natural and legal persons, not necessarily nationals of a Party to the Convention, and they can submit communications concerning a general failure to implement appropriate legislative measures, as well as specific actions or omissions by State authorities of State Parties which have not opted out. 36

As already noted above, although the trigger by non-State actors has not been adopted in MEAs with a global scope, here, however, NGOs are entitled to participate at the COPs’ meetings and on these occasions they may submit information relating to cases of non-compliance to the COP. Such information may constitute an “indirect trigger” of the non-compliance procedure when the COP considers that the matter is worthy of being forwarded to the competent compliance bodies.

3. Procedural Aspects Related to the Triggering Phase

Non-compliance procedures are not conceived as formal and strict procedures man-dated at declaring breaches of environmental obligations and corresponding respon-sibilities of violating States but rather as flexible and amicable means. It follows that generally a flexible approach to the matters under consideration is adopted and therefore procedural aspects, in particular in earlier mechanisms, are not regulated in detail.

How ever, the need for procedural rules has emerged from the practice and in more recent non-compliance systems greater attention is given to procedural requirements that shall be met, in particular, when the procedure is triggered.37

33 See Alpine Convention NCP, para. 2: “Il Gruppo di verifica esercita le seguenti funzioni: […]3. tratta le domande di verifica relative al presunto non rispetto della Convenzione e dei suoi Protocolli che gli ven-gono sottoposte dalle Parti contraenti e dagli osservatori.”

34 See Alpine Convention NCP, para. 2.3; Aarhus Convention NCP, para. 18; PRTR Protocol NCP, para. 18; Water and Health Protocol NCP, para. 16. Under the Espoo Convention, the public trigger was con-sidered but finally not endorsed, see J. Jendrośka, “Practice and Relevant Cases that Emerged in the Context of the Espoo Convention Implementation Committee”, supra 319–335, at 323.

35 See, for example, Aarhus Convention NCP, para. 18: “On the expiry of twelve months from either the date of adoption of this decision or from the date of the entry into force of the Convention with respect to a Party, whichever is the later, communications may be brought before the Committee by one or more mem-bers of the public concerning that Party’s compliance with the Convention, unless that Party has notified the Depositary in writing by the end of the applicable period that it is unable to accept, for a period of not more than four years, the consideration of such communications by the Committee.”

36 See Modus Operandi of the Compliance Committee (Modus Operandi), available at <www.unece.org/env/pp/compliance.htm> (visited 15 July 2008), at 31.

37 On procedural guarantees see M. Montini, “Procedural Guarantees in Non-Compliance Mechanisms”, infra 389–405.


A case of irregular trigger is the way the Russian Federation’s compliance was treated under the Montreal Protocol non-compliance procedure. The Russian Federa-tion manifested its compliance difficulties to the COP/MOP, in the first place, and subsequently to the Open-ended Working Group but it did not address its submission to the Secretariat, as requested by paragraph 4 of the procedure. Although neither the COP nor the Working Group are entitled to trigger the procedure, the Implementation Committee was unofficially informed of the non-compliance situation and considered the case as a self-trigger. 38

The Russian Federation, which was present at subsequent meetings of the COP/MOP and of the committee, presented many arguments in defense of its non-compli-ance situation but never challenged the legal basis of the competence of the Imple-mentation Committee to consider its “unintentional submission”. Such behavior seems to indicate that the Russian Federation has accepted this trigger of the proce-dure by acquiescence.

Starting with the preliminary phase of the trigger, there are actions which States and organs intending to initiate the procedure shall go through before formally trig-gering the procedure.

These are mainly the duty of prior consultation among the Parties and organs involved and the duty to notify the submission to the Party in alleged non-compliance.39

It is a common feature of international dispute settlement procedures that before their initiation the Parties concerned should proceed to consultations among them in order to seek to solve the matter in an amicable way.40

Compliance procedures also generally envisage a similar duty of prior consultation between the Parties involved, in the case of a Party-to-Party trigger, and between the Party in alleged non-compliance and the Secretariat, in the case of Secretariat trigger, in order to seek a solution before submitting the matter to the compliance bodies.

The prior consultation is usually without a precise time limit when it relates to the Party-to-Party trigger,41 while in case of the Secretariat trigger this can only take place after consultations have been carried out for a period of generally three months.42

Coming to the strictu sensu triggering phase, a procedural issue to be considered is whether the Secretariat, when informed of a potential case of non-compliance, has a discretionary power to go further with the procedure.

38 Werksman, supra n. 6, at 764, refers to the Implementation Committee’s action as a “bold step”.39 See, for example, Barcelona Convention NCP, para. 20: “The Secretariat shall, within two weeks

of receiving a submission in accordance with paragraph 18(b) [Party-to-Party trigger], send a copy of that submission to the Party concerned”; Kyoto Protocol NCP, section VI.2: “The secretariat shall forthwith make available to the Party in respect of which the question of implementation is raised […] any question of implementation submitted under paragraph 1 above.”

40 See, for example, Law of the Sea Convention, Art. 283.1: “When a dispute arises between States Par-ties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.”

41 See, for example, Basel Convention NCP, para. 9(b); Stockholm POPs Draft NCP, para. 17(b); Rotter-dam PIC Convention Draft NCP, para. 12(b); London Convention NCP, para. 4.1.3. An exception is found in the Barcelona Convention NCP where consultations may not last more than six months (para.18 (b)).

42 See, for example, Basel Convention NCP, para. 9(c); Stockholm POPs Draft NCP, para. 17(c); Rotter-dam PIC Convention Draft NCP, para. 12(c); Barcelona Convention NCP, para. 23.

383triggering

In this respect a distinction may be drawn between, the role the Secretariat plays in cases of Party-to-Party and self trigger on the one hand, and in the case of the Secre-tariat trigger on the other.

While in the former the Secretariat merely has an administrative function consist-ing of transmitting the submission to the committee and has no discretion in evaluat-ing the compliance matter,43 in the latter it has been argued that its triggering power may not be considered as a strict obligation to report to the compliance committee. According to this view, the first step the Secretariat should (“may”) undertake to acti-vate the procedure is the request of information from the Party in alleged non-compli-ance and only after this step has been gone through does a duty to continue the process and bring the matter to the compliance body arise.44

How ever, an overview of the different procedures suggests that a more plausible interpretation would be that in some cases the Secretariat has discretionary power in asking the Party for information before triggering the procedure, but this does not constitute a necessary precondition to the triggering of the procedure. In this view, there may be discretion with regard to the duty of the Secretariat to ask the Parties for information as appropriate but, on the other hand, there is an autonomous legal obli-gation for the Secretariat to forward the matter to the committee.45

4. Admissibility Criteria

Beside the procedural steps there are other requirements that should be met in order to effectively trigger the procedure. Also with regard to these matters there has been increasing attention to substantive and formal criteria that should characterize the submissions presented to compliance bodies.

43 See, for example, Basel Convention NCP, para. 11: “Where a submission is made under paragraph 9 (a) [self-submission], the secretariat shall forward the submission, within two weeks of its receiving the submission, to the Committee for consideration at its next meeting.”

44 D.G. Victor, “The Early Operation and Effectiveness of the Montreal Protocol’s Non-Compliance Procedure”, IIASA Paper ER-96-2 (1996), at 5, with regard to the Montreal Protocol, notes that “The Secre-tariat has an ambiguous obligation to inform the Implementation Committee if it becomes aware of possible non-compliance.”

45 Compare, for example, the provisions of the LRTAP Convention NCP, para. 5: “Where the secre-tariat, […] becomes aware of possible non-compliance by a Party with its obligations, it may request the Party concerned to furnish necessary information about the matter. If there is no response or the matter is not resolved within three months or such longer period as the circumstances of the matter may require, the secretariat shall bring the matter to the attention of the Committee” with the relevant provisions under the Barcelona Convention NCP, para. 23: “If the Secretariat becomes aware […] that a Party is facing difficul-ties in complying with its obligations under the Convention and its Protocols, the Secretariat shall notify the Party concerned and discuss with it ways of overcoming the difficulties. If the difficulties cannot be overcome within a maximum period of three months, the Party concerned shall make a submission on the matter to the Compliance Committee in accordance with paragraph 18 (a). In the absence of such a submis-sion within six months of the date of the above mentioned notification, the Secretariat shall refer the matter to the Committee.” (emphasis added)


4.1 Formal requirements

Under all non-compliance mechanisms, as a minimum common requirement, submis-sions shall be made in writing to the Secretariat.

Some of the more recent compliance systems, such as the ones under the Aarhus Convention and the Kyoto Protocol, prescribe detailed rules specifying the content of the submissions.

The Aarhus Convention procedure makes it clear that

“[t]he Committee will not consider any communication that it determines to be: (a) Anony-mous; (b) An abuse of right to make such a communication; (c) Manifestly unreasonable; (d) Incompatible with the decision on review of compliance (decision I/7) or with the Con-vention; (e) Concerning a State which is not a Party to the Convention; (f) Concerning a Party which has opted out.”46

On the other hand, under the Kyoto Protocol necessary requirements are: the indica-tion of the triggering Party and of the Party concerned, a statement identifying the question of implementation, the reference to the relevant provisions of the Protocol or of COP/MOP decisions, which constitute the legal basis for the submission and, in the case of a Party-to-Party trigger, corroborating information supporting the question of implementation.47 Furthermore, submissions “shall be signed by the agent of the Party and be delivered to the secretariat in hard copy and by electronic means” and “any relevant documents in support of the submission or comment shall be annexed to it.”48

A formal requisite that may limit the capacity of triggering the procedure is the language in which submissions shall be drafted. Indeed, requiring a specific language places the burden of the translation on the submitting Party.49

46 These indications are listed in the Modus Operandi of the Aarhus Convention NCP. 47 See Decision 4/CMP.2 on Rules of Procedure of the Compliance Committee of the Kyoto Protocol,

doc. FCCC/KP/CMP/2006/10/Add.1 (2 March 2007), Annex, rules 14 and 15. According to rule 14.2, other elements a self-submission should contain are: “(a) Any provisions of the decisions of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol and the reports of the subsidiary bodies that are applicable to the question of implementation; (b) The information that is material to the question of implementation; (c) The branch from which action is sought; (d) The action requested from the branch; (e) A list of all documents annexed to the submission.”

48 Ibid., rule 18.49 Under the Espoo Convention NCP, according to rule 21 of the Draft Operating Rules. The draft Oper-

ating Rules of the Implementation Committee are set out in Draft Decision IV/2 on the Review of Compli-ance, doc. ECE/MP.EIA/2008/4 (21 February 2008), Annex, submitted to the fourth MOP. On this issue see also Jendrośka, supra n. 34, at 325. A different approach is adopted by the Aarhus Convention NCP, where the Modus Operandi provides that communications from the public may be submitted in any of the official languages of the Convention (English, French or Russian) and where this is not possible, the Secretariat will arrange the translation into English. This could slow the process but it does not place the burden of transla-tion on the triggering subject.

385triggering

4.2 Substantive requirements

In as much as the submissions of Parties with regard to themselves are concerned, according to the rules of many non-compliance mechanisms States shall demonstrate that they did their best in order to avoid the situation of non-compliance and explain the causes of their non-compliance.50 Some more advanced procedures require also that submissions should indicate the specific obligations and corresponding treaty provisions concerned and, in some cases, also possible solutions considered appropri-ate to solve the compliance matter.

Furthermore, there are mechanisms that expressly provide for a list of information that shall support the self trigger and the submissions by other Parties or, when admit-ted, communications from the public, while others more generically refer to “corrobo-rating information”.51

Compliance committees may consider inadmissible submissions that are mani-festly ill-founded52 or de minimis.53

Another matter that is considered under certain non-compliance procedures in determining the admissibility of the submission is the existence of parallel proceed-ings under other jurisdictions, i.e., whether the same issue is being considered under a dispute settlement or inquiry procedure.54

Under the Aarhus Convention, for example, a communication submitted by an English citizen was declared not admissible because “the matter was subject to an ongoing inquiry”.55

Moreover, a further requirement is provided by certain UNECE Conventions’ non-compliance procedures, according to which the prior exhaustion of local remedies shall be verified:

“The Committee should at all relevant stages take into account any available domestic rem-edy unless the application of the remedy is unreasonably prolonged or obviously does not provide an effective and sufficient means of redress.”56

As a final remark, the admissibility of a submission is determined also with regard to the existence of a jurisdiction ratione temporis of the relevant compliance mechanism. In effect, compliance procedures may address situations which have already occurred,

50 Montreal Protocol NCP, para. 4.51 Ibid., para. 1.52 London Convention NCP, para. 4.2.53 Stockholm POPs Convention Draft NCP, para. 25; Rotterdam PIC Convention Draft NCP, para. 17;

Basel Convention NCP, para. 18;54 See Espoo Convention NCP, paras. 14, 15. The London Convention NCP, para. 4.6 provides that:

“Where a submission raises compliance matters involving radioactive wastes and other radioactive matter, the Secretariat, on behalf of the Compliance Group, shall refer the matter to the IAEA for technical evalua-tion and review.”

55 See the Letter (Re: Communication ACCC/C/2007/19 (UK) of Mr. Jeremy Wates, (Secretary of the Convention) to Mr. Hall and the Datasheet with the same reference number, available at <http://www.unece.org/env/pp/compliance/C2007-19/toCommunicant2007.12.19.pdf> (visited 15 July 2008).

56 Aarhus Convention NCP, para. 21. Identical provisions are PRTR Protocol NCP, para. 21 and Water and Health Protocol NCP, para. 19.


but they may also be called upon to consider possible or future cases of compliance. Usually the Party-to-Party trigger relates to actual compliance problems,57 while self submissions or Secretariat/Committee initiatives may concern also future difficul-ties.58

Under the practice of the Espoo Convention with regard to a case between Roma-nia and Ukraine, the committee analyzed whether the assessment of the Bystroe Canal project could be considered to fall within the mandate of the committee. In fact the canal already existed before the two States ratified the Convention, and therefore could not be considered as a “new activity”, according to Article 1(v) of the Conven-tion. How ever, the committee considered that the project falls within the scope of the Convention as it represents a “major change” to a “proposed activity”, according to Article 2.3 of the Convention. The committee ends up by stating that:

“In such a situation, the requirements of the Convention do apply to the project and the opinion of the Committee is that Romania should be considered as the ‘affected Party’.”59

5. Conclusion

The way non-compliance procedures are set in motion is a sensitive issue that finds different solutions, depending on each MEA and its specific features.

The delicate nature of the “trigger issue” is also reflected in the parallel recognition of procedural guarantees and other safeguards in non-compliance mechanisms recog-nizing a broad trigger. This is the case, for example, of the Aarhus Convention and other UNECE treaties which entitle members of the public to trigger the procedure, but also allow the State Parties to temporarily delay the operation in their respect of this triggering by making a notification that they are unable to accept compliance issues raised by the public.60

Another example is provided by the negotiation of the Stockholm POPs Conven-tion procedure, where the Chair of the Working Group, at its session in May 2007, proposed linking the Secretariat trigger to the higher guarantee of consensus voting in

57 See, for example, Espoo Convention NCP, para. 5(a): “A submission may be brought before the Committee by one or more Parties to the Convention that have concerns about another Party’s compliance […]”; Similarly, Barcelona Convention NCP, para. 18(b); Water and Health Protocol NCP, para. 14; Rot-terdam PIC Convention Draft NCP, para. 12(b); LRTAP Convention NCP, para. 4(b); PRTR Protocol NCP, para. 15. An exception is found in the Stockholm POPs Convention Draft NCP, para. 17(b).

58 See, for example, Espoo Convention NCP, paras. 5(b): “A submission may be brought before the Committee by a Party that concludes that, despite its best endeavours, it is or will be unable to comply […]” and 6: “Where the Committee becomes aware of possible non compliance […]” (emphasis added); Similarly, Barcelona Convention NCP, paras. 18(a) and 23; Stockholm POPs Convention Draft NCP, para. 17(a) and (c); Water and Health Protocol NCP, para. 13 and 15; Rotterdam PIC Convention Draft NCP, paras. 12(a) and (c); LRTAP Convention NCP, para. 4(a) and 5; PRTR Protocol NCP, paras. 16 and 17.

59 Review of the Work Done by the Working Group on Environmental Impact Assessment and Adoption of Decisions, doc. ECE/MP.EIA/2008/6 (27 February 2008), para. 37.

60 Aarhus Convention NCP, section VI.18.

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the Committee, replacing majority voting and deleting the more severe measures that may be adopted by the Committee.61

Some common features are present in all non-compliance procedures, such as the self-trigger and the Party-to-Party trigger, or the central role of the Secretariat which serves as the intermediary between Parties and compliance bodies by providing the necessary information and communication.

As regards the procedural aspects of the triggering phase, non-compliance proce-dures, particularly the more recent ones, usually specify the time limits and deadlines to be respected both by the Parties to submit responses and information and for the Secretariat and the Committee to consider the case and take appropriate action.

Another common aspect is the duty to proceed to consultations with the concerned Party before setting in motion the procedure in order to verify whether the case can be solved “informally”.

On the other hand there are issues that have been addressed in a different way. These include the sources of information that can be used when triggering the non-compliance procedure, or the other subjects, such as NGOs, observers or other organs of the treaty, that may be entitled to initiate the procedure.

Lacunae have been highlighted by the practice, for example, of the Kyoto Protocol, where the Facilitative Branch was unable to decide on the admissibility of a submis-sion and has shown the uncertainty of the rules governing the triggering phase and the inadequacy of the decision-making methods of the compliance procedure.

Under the Espoo Convention interesting considerations were advanced by the com-mittee on legal aspects of the triggering with regard to the legal basis of the jurisdic-tion ratione temporis in the Bistroe Canal case.

An overview of existing non-compliance procedures focused on the triggering phase shows that we are still in an early phase of development of these procedures, where relevant rules are subject to evolving interpretation by the compliance bodies and by the Parties involved.

61 See Report of the Conference of the Parties of the Stockholm Convention on Persistent Organic Pol-lutants on the Work of its Third Meeting, (Appendix to Decision SC-3/20, Chair’s Proposal), doc. UNEP/POPS/COP.3/30 (4 May 2007), at 63.


Documents

Triggering Non-Compliance Procedures