Part I - General and Conceptual Issues

2 Lessons from the Paris Agreement for International Pandemic Law and Beyond

Caroline E. Foster

2.1 Introduction

Populations around the world today are physically and economically interdependent. They share a global economy, they share supply chains, they share the global environment, they share the earth’s resources, they share the air that we breathe, they share contagious diseases and they share a reliance on nature’s well-being. In this world of shared interests, conceiving of implementation and compliance primarily through a dispute settlement lens has become more outdated than ever before. Dispute settlement machinery deals with often bilateral individual disputes, and it deals with them once they have crystallised, and often retrospectively. Even in multilateral settings, it is likely to be focussed on a relatively narrow range of issues identified by the litigants in light of their immediate and longer-term strategic interests. In contrast, today’s international problems increasingly require addressing ex ante, at times before major concerns become apparent. They call for dynamic processes that will review and re-review compliance. They correspond to a broad agenda calling for contemporaneous action by multiple Parties across multiple interrelated policy spheres. They require significant information flow, including scientific, technical and economic and social information.

Facilitative implementation and compliance processes like those found mainly in multilateral environmental agreements (MEAs) have the potential to help address this set of needs if we bring them into wider use across international law, and this chapter advocates their more widespread adoption in treaty regimes across diverse fields of international law. Provision for these processes should specifically be included in the expected treaty on pandemic preparedness and response, to which this chapter devotes its main attention, and the intended international legally binding instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ),¹ as well as the plastics pollution treaty presently under negotiation.²

Frequently contrasted with formal international dispute settlement, such non-compliance mechanisms (NCMs) are generally characterised as providing a softer option. Indeed, a ‘new generation’³ of MEAs, including the Paris Agreement,⁴ the Rotterdam Convention on the Prior Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade as it now operates⁵ and the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes⁶ now leave aside the enforcement elements seen in the non-compliance arrangements under earlier regimes like the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol),⁷ the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),⁸ the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention)⁹ and the Kyoto Protocol to the United Nations Framework Convention on Climate Change.¹⁰ These ‘new generation’ regimes emphasise the practical facilitation of compliance, increasingly omitting sanctions for non-compliance and taking an explicitly non-confrontational approach.¹¹ The focus and the terminology being employed have both shifted towards implementation as well as compliance. We can arguably now talk of ‘implementation and compliance mechanisms’ rather than non-compliance mechanisms, but for simplicity the more general term ‘non-compliance mechanisms’ will continue to be used in this chapter.

Pursuing the argument that including facilitative NCMs in international pandemic law and beyond could help meet the needs of an increasingly interdependent world, this chapter is divided into four parts. The first part introduces the chapter. The second part considers the value that an NCM could add to the international law on pandemic preparedness and response. As negotiations for a new pandemic treaty progress, there are important opportunities to adopt machinery that will help ensure its better implementation. The third part investigates whether aspects of the facilitative compliance and accountability machinery in the Paris Agreement – as perhaps the most recent, sophisticated and universal of the NCMs in the various MEAs – could potentially be transferable to international pandemic law. While we have still to see the Paris Agreement’s compliance and accountability machinery in operation over time in order to evaluate its strengths and weaknesses, the Paris model provides much food for thought. It is not too early to suggest that reflections on the Paris model can helpfully inform negotiations on compliance in new instruments across other fields of international law.

The fourth part underpins these practical discussions with an investigation of developments in the theoretical basis for NCMs, explaining that, in today’s interdependent world, managerial and rationalist theories of compliance converge to support the adoption of facilitative implementation and compliance machinery. At the same time, facilitative implementation and compliance mechanisms will work in complement with the occasional exercise of international courts’ and tribunals’ jurisdiction and formal dispute settlement processes more generally. The chapter concludes with comments on associated questions of State responsibility as well as an update on relevant negotiations.

2.2 An NCM for International Pandemic Law?

International law on pandemic preparedness and response has not had a strong focus on the development of non-compliance machinery. Yet compliance with the central legal instrument, the International Health Regulations (IHR), is critical. The IHR concern matters including sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease. They were adopted by the World Health Assembly in 1969 under Article 21 of the WHO’s Constitution.¹² They are binding on WHO member States by virtue of Article 22 of the Constitution and were reviewed in 1983 following the eradication of smallpox and in 2005 after the defeat of the novel coronavirus SARS-CoV (Severe Acute Respiratory Syndrome).

The IHR 2005 revolve around a set of concrete requirements relating respectively to capacity¹³ and to notification and information sharing.¹⁴ As to capacity, the key provisions in Article 5 and Article 13 require States to develop, strengthen and maintain respectively the surveillance capacity to detect, assess, notify and report events; and the public health response capacity to respond promptly and effectively to public health risks and public health emergencies of international concern. The WHO is to assist on request.¹⁵ Eight inferred core capacities are in the areas of national legislation, policy and financing; coordination and national focal point communications; surveillance; response; preparedness; risk communication; human resources and laboratory services.¹⁶ As to notification, the IHR call for notification by a WHO member State to the WHO within twenty-four hours of assessment of public health information of any event which may constitute a public health emergency in its territory, as well as the response and support received.¹⁷ Further provisions of the Regulations deal with matters including the declaration of public health emergencies of international concern, the WHO adoption of temporary and standing recommendations, measures to be taken at points of entry, travel and transport-related public health measures, travel documentation, charges, additional health measures, collaboration and assistance, and further matters relating to administration and review of the regulations.

Public debate on the IHR’s effectiveness has tended to focus on the emergency provisions, neglecting the underpinning significance of the capacity provisions and mechanisms to help ensure implementation.¹⁸ The Review Committee on the Functioning of the International Health Regulations (2005) during the COVID-19 Response observed that the IHR 2005 ‘do not contain a clear mechanism to monitor compliance with the many obligations of WHO and States Parties’ other than a ‘static self-assessment report on core capacities’ and a WHO secretariat annual implementation report to the World Health Assembly.¹⁹ Under Article 54(c) of the IHR 2005, States Party and the Director-General are to report to the Health Assembly on the implementation of these Regulations as decided by the Health Assembly.²⁰ Historically, Article 54 reports were required to align with the indicators, scoring system and topics found in the WHO’s 2010 IHR Core Capacity Monitoring Framework. However, since 2018 a self-scoring quantitative questionnaire has been used, known as the State Parties Self-Assessment Annual Reporting (SPAR) tool.²¹ The number of States submitting annual reports has increased.²² However, it has been argued that under the new model, the required content does not contribute effectively to identification of what is expected of States in terms of core capacities.²³ Furthermore, although the scores submitted by States in their reports may be made public, there is no subsequent critical review process.²⁴ Neither is there a clear adverse consequence in case of non-submission, late submission or incomplete reporting.²⁵ The processes used are evidently insufficiently focussed: ‘[t]hese reports, and the tools used to produce them, do not assess how well individual countries have performed on specific IHR functions and obligations.’²⁶

The annual reporting process is the main feature of the WHO’s 2016 IHR Monitoring and Evaluation Framework, also embracing three processes introduced in response to a call to move away from the self-evaluations on which Article 54 reports rely. These three processes are: voluntary joint external evaluations (JEEs); after-action reviews; and simulation exercises,²⁷ all of which remain voluntary. Figures published in 2021 suggest that 112 on-site JEE missions had taken place, 64 reviews following public health action under the IHR, and 128 simulation exercises.²⁸ Refined in 2018,²⁹ the JEE process involves a State’s preliminary self-assessment with subsequent on-site visits and reviews by a combined group of external and local experts.³⁰ Reliance within the JEE process on States’ self-assessment is considered a weakness of the JEE process.³¹ States’ self-assessments are said to be an estimated 20 per cent higher than estimates of their capacity in JEE reports.³² States’ agreement is required for the experts’ selection and methodology, and any publication of a JEE report.³³

COVID-19 revealed critical gaps in pandemic preparedness, including gaps in governance, subnational gaps and capacity, essential public health functions, such as diagnosis/testing, contact tracing and treatment capacities.³⁴ According to the data reported to the WHO by State Parties, as at 2021 the vast majority of countries still had low or moderate levels of national preparedness.³⁵ The Review Committee also found that weak capacities were reported for emergency preparedness and response at points of entry.³⁶ Confounding matters, IHR core capacities alone did not prove to be a good predictor of pandemic response in respect of COVID-19.³⁷ COVID-19’s magnitude and challenges overwhelmed many countries, including countries with high assessment scores.³⁸ There was ‘a significant disconnect between the actual and perceived levels of preparedness’.³⁹ Compliance problems had, though, previously been fully apparent. Too many countries had missed the five-year deadline for development of the requisite capacities, even with second extensions.⁴⁰ Reviews of the functioning of the IHR following past disease outbreaks including H1N1 and Ebola had provided relevant readings on the state of under-preparedness and the under-implementation of the IHR.⁴¹ And, to be fair, two thirds of States’ own annual reports to the WHO indicated only a poor or modest preparedness, at a level of 1 to 3 out of 5.⁴² Even with progress in the evaluation of core capacities from 2016 to 2018,⁴³ the compliance problem had attracted serious concern to the point where the WHO had identified protection from health emergencies as one of three strategic priority areas for the World Health Organization in the 2019–2023 period.⁴⁴

Strengthening the effectiveness and implementation of, and compliance with, the IHR 2005 is now a clear area of priority for all member States.⁴⁵ Improved compliance with the international law on pandemic preparedness and response is central to preventing fresh iterations of the experience with COVID-19, or worse, in the case of future emerging pandemics, and clearly requires greater attention. Initially a 2021 World Health Assembly mandate tasked the WHO Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (WGPR) to assess the benefits of developing such a convention, agreement or instrument on pandemic preparedness and response.⁴⁶ On 1 December 2021 the WHA established a new Intergovernmental Negotiating Body to work on the intended instrument, with the WHO secretariat tasked in March 2022 to prepare a draft text, in an open and inclusive manner. In parallel the WGPR continued to consider improvements to the IHR 2005. In July 2022 governments decided that the new instrument would be legally binding and would be adopted under Article 19 of the WHO Constitution. It has remained unclear whether improved compliance and implementation procedures will be elaborated in the context of the expected new instrument.⁴⁷ However, during the period this book was being produced, governments began to turn their attention more closely to this question.

The reports and reviews on which the intergovernmental negotiations and WGPR are drawing have addressed implementation and compliance in broad terms only. These reports and reviews have included reports of the Independent Global Preparedness Monitoring Board,⁴⁸ the WHO’s Review Committee on the functioning of the IHR 2005 during the COVID-19 Response,⁴⁹ the Independent Panel for Pandemic Preparedness and Response (IPPR)⁵⁰ and the WHO’s Independent Oversight Advisory Committee.⁵¹

2.2.1 Proposals for Compliance Mechanisms

2.2.1.1 Global Preparedness Monitoring Board

The Global Preparedness Monitoring Board, an entity comprising political leaders, agency principals and experts co-convened by the Director-General of the World Health Organization and the President of the World Bank, emphasised the critical importance of strengthened independent monitoring to incentivise action and engender greater mutual accountability.⁵² Independence is key; a monitoring body must be ‘autonomous, unconstrained by political, organizational, operational or financial considerations’.⁵³ Objectivity is essential, assessments must be evidence-based, transparent and independently verifiable.⁵⁴ For monitoring to generate accountability, assessments and recommendations must then be expected to lead to action.⁵⁵

2.2.1.2 Review Committee on the Functioning of the International Health Regulations (2005)

The Review Committee on the Functioning of the International Health Regulations (2005) convened by the WHO Director-General under the IHR to review the Regulations’ functioning during the COVID-19 Response recommended that the WHO ‘should continue to review and strengthen tools and processes for assessing, monitoring and reporting on core capacities, taking into consideration lessons learned from the current pandemic, including functional assessments, to allow for accurate analysis and dynamic adaptation of capacities at the national and subnational levels’.⁵⁶ Practical exercises may be necessary to gauge as well as to improve capacity and functioning. The Review Committee suggested that ‘[a] combination of static measurements of capacities scores, and dynamic assessments through external evaluations, simulation exercises and after-action reviews, were found to provide a more complete overview of both the existence and functionality of capacities’.⁵⁷ The Committee also recommended that ‘WHO should work with States Parties and relevant stakeholders to develop and implement a universal periodic review mechanism to assess, report on and improve compliance with IHR requirements, and ensure accountability for the IHR obligations, through a multisectoral and whole-of-government approach’.⁵⁸ The Committee noted that as it operated in the human rights arena, universal periodic review had helped foster intersectoral coordination, whole-of-government approaches and civil society engagement, as well as encouraging participation and good practices, with implementation of its recommendations linked to the Sustainable Development Goals and other government agendas.

2.2.1.3 Independent Oversight and Advisory Committee for the WHO Health Emergencies Programme

The Independent Oversight and Advisory Committee for the WHO Health Emergencies Programme was established in 2016 with an advisory and oversight function in respect of the WHO’s work in disease outbreaks and emergencies and necessarily has a collaborative relationship with the WHO secretariat. The Committee’s 2021 report iterated that the COVID-19 pandemic has exposed failings in pandemic preparedness and response across the world, with national and international systems struggling and health systems overwhelmed, highlighting shortcomings in the IHR 2005 and their application by member States and the WHO secretariat.⁵⁹ Stricter compliance with the IHR 2005, together with stronger international solidarity, was of the utmost importance in facing future pandemic threats.⁶⁰ The Committee aligned itself with the Review Committee’s recommendation to introduce a mechanism to foster whole-of-government accountability,⁶¹ and sought a review by the secretariat of the existing tools and framework for national and international preparedness, including JEEs and national action plans. The Committee intends to keep this area of work under close review.⁶²

2.2.1.4 Independent Panel for Pandemic Preparedness and Response

The IPPR, co-chaired by Helen Clark and Ellen Johnson Sirleaf, was convened by the World Health Organization (WHO) Director-General in response to 2020 World Health Assembly (WHA) Resolution WHA73.1 to evaluate the world’s response to the COVID-19 pandemic. The IPPR’s Report (i) called for immediate action to alleviate the devastating reality of the COVID-19 pandemic, and (ii) set out a roadmap for fundamental transformation in the international system for pandemic preparedness and response.

Centrally for present purposes, the report recommended investment in preparedness now, and not when the next crisis hits, with critical accountability mechanisms to spur action. The report also recommended stronger leadership and better coordination at national, regional and international level, including a more focussed and independent WHO, a pandemic treaty and a senior Global Health Threats Council; an improved system for surveillance and alert at a speed that can combat viruses like SARS-CoV-2, and new authority for the WHO to publish information and dispatch expert missions immediately; a pre-negotiated platform for production and equitable distribution of vaccines, diagnostics, therapeutics and supplies; and access to financial resources as a vital investment in preparedness and for immediate availability at the onset of a potential pandemic.⁶³ Highlighting the failure to take pandemics seriously, the report emphasised that the world had attended insufficiently to accumulated warnings following the 2003 SARS epidemic, the 2009 H1N1 influenza pandemic, the 2014–2016 Ebola outbreak in West Africa, Zika and other disease outbreaks, including Middle East respiratory syndrome (MERS).⁶⁴ In the Report’s own words, the majority of pandemic preparedness and response recommendations had not been implemented.⁶⁵ National pandemic preparedness was vastly underfunded,⁶⁶ and too many national governments lacked solid preparedness plans and core public health capacities.⁶⁷

The Panel incorporated a central focus on the question of accountability, capacity building and access to finance in its section on leadership. In recommending that States establish a Global Health Threats Council, the Panel intended to secure high-level political leadership for pandemic preparedness and response, and ensure the subject would gain sustained attention.⁶⁸ This body would monitor progress towards the goals and targets to be set by the WHO, as well as against new scientific evidence and international legal frameworks, and report on a regular basis to the United Nations General Assembly and the WHA. Actors would be held accountable including through peer recognition and/or scrutiny and the publishing of analytical progress status reports.⁶⁹ This would operate in a context of coordinated leadership from the WHO, the International Monetary Fund (IMF), the World Bank and the United Nations Secretary-General, as well as regionally.⁷⁰

The Panel proposed incorporation of relevant pandemic considerations into existing instruments used by the IMF and World Bank, as well as the amalgamation of disaster risk reduction capacity building which has largely been separated from health sector pandemic preparedness efforts.⁷¹ The Panel recommended further that the WHO set new and measurable targets and benchmarks for pandemic preparedness and response capacities against which all national governments should update their national preparedness plans within six months.⁷² The Panel recommended formalising universal periodic peer reviews of national pandemic preparedness and response capacities against the WHO’s targets as a means of both accountability and learning between countries. The Panel suggested also that, as part of its regular consultation with member countries under Article IV of the IMF’s Articles of Agreement, the IMF should routinely include a pandemic preparedness assessment, including an evaluation of economic policy response plans. Five-yearly Pandemic Preparedness Assessment Programs should also be instituted in each member country, in the same spirit as the Financial Sector Assessment Programs, jointly conducted by the IMF and the World Bank.⁷³ Incentivising speedy action on outbreaks to reward early and precautionary response action will be key.⁷⁴

2.2.2 Evaluating the Proposals

An appropriate NCM supported by the secretariat of the WHO has the potential to add value to all the options contemplated above, helping bridge the gaps in the presently contemplated IHR 2005 compliance and implementation processes, and assisting the international community in meeting on an enduring basis the imperative need for robust pandemic preparedness and response. This would involve a shift away from viewing compliance as a matter of setting up a layer of ‘[i]ndependent monitoring, evaluation and oversight’,⁷⁵ to the expectation of a more engaged form of ongoing member State accountability. Although peer recognition, public scrutiny and transparency will be significant motivators for compliance, many of the proposed mechanisms are not closely enough focussed on an on-the-ground engagement with realities of public health and communications systems in each WHO member State. Prior experience suggests that such proposals are likely to remain insufficient, given the ongoing difficulties and wide gap between capacity required under the IHR 2005 and WHO member States’ actual capacity to deal with contagious disease outbreaks. The inter-linkage of implementation and compliance with questions of equity, finance and capacity building also calls for hands-on practical and informed country- and case-specific attention.

The proposed Global Health Threats Council also differs from an NCM in that it would be high level only, and the idea does not initially appear to have met with strong support from member States.⁷⁶ World Health Organization targets for achievement of core capacities would help reinforce resolve and political will. However, target-setting arguably needs to be accompanied by means of differentiating the challenges faced by different populations, communities and bureaucracies with a view to close-range analysis and assistance. The IPPR’s suggested IMF and World Bank procedures may serve as pragmatic planks for the development of pandemic preparedness and response capacity. Yet these are financial institutions. Although pandemic preparedness and response is a whole-of-government endeavour and economic concerns are central, there is a strong case that compliance machinery for aspects of pandemic preparedness and review relating directly to health systems should be housed in an institution experienced in health policy.

The idea of a universal periodic review (UPR) would go some way towards reinforcing compliance needs and identifying implementation gaps, but does not appear to offer the schematic complexity or focussed expert attention, support and communication that an NCM could bring to bear. The UPR model seen in the human rights field is set up to provide a review of all States’ fulfillment of human rights commitments once every four and a half years, through a series of three two-week periods annually where a State’s representatives are interviewed by other States’ representatives. This is combined with a country visit by experts from the roster of the Office of the High Commissioner for Human Rights. A working group proposes a set of recommendations and the State concerned then decides which recommendations merely to note and which to accept and implement.⁷⁷

Conceptually, the UPR seems in certain respects an unusual fit for pandemic preparedness law. The UPR concept brings with it overtones of the special sensitivity of States to potential criticism of their human rights records. Reflecting this orientation, the description of the UPR process on the website of the Office for the High Commissioner of Human Rights refers to it as ‘a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries’.⁷⁸ Yet, because pandemics affect all countries, and in such serious ways, it seems inappropriate to carry such a sensitivity over to the field of pandemic law. There is also the risk that the idea of a UPR, drawing inspiration from the human rights domain,⁷⁹ will reinforce the idea that the implementation of the IHR 2005 is essentially for the well-being of a State’s own citizens, even though in the context of contagious diseases, reviews of any one State are critical for all States. There are elements in common with Trade Policy Reviews in the World Trade Organization (WTO).

The adjusted denominator ‘Universal Health Preparedness Review’ (UHPR) has been employed to describe a pilot process in the WHO, for which WHO member States from all regions have expressed appreciation.⁸⁰ It will be interesting to see the results of the WHO UHPR which is described as involving a ‘Member State-driven intergovernmental consultative mechanism’ involving ‘volunteer and peer-to-peer’ (i.e., State-to-State) reviews of States’ preparedness capacities.⁸¹ Even if States decide that a UHPR is the best way forward for helping ensure compliance with international pandemic law, it would be valuable to see the UHPR process evolve in ways that incorporate various of the independent, expert, tailored and facilitative elements of the type we see in the non-compliance machinery of the Paris Agreement and elsewhere.

The next section of this chapter examines the Paris Agreement model more closely, including features to consider for transfer to international pandemic law and beyond.

2.3 The Paris Agreement’s Compliance and Accountability Machinery as a Model for International Pandemic Law

The Paris Agreement is of a particular character in that participating States’ emissions reductions targets or Nationally Determined Contributions (NDCs) are self-specified. There is no obligation in the Paris Agreement compelling their realisation (although NDCs are subject to the Agreement’s requirements that each Party’s successive nationally determined contribution will represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition).⁸² Accordingly the Paris Agreement’s accountability and compliance arrangements focus on a range of other administrative and procedural obligations and processes intended to help bring about the Agreement’s effective implementation.

Compliance with the Paris Agreement is encouraged through several overlapping mechanisms including: accountability in relation to NDCs, an enhanced transparency framework and the work of the Implementation and Compliance Committee. In addition, there is the Global Stocktake, and additionally the possibility of dispute settlement.⁸³ Communication, reporting and accounting requirements for NDCs are central.⁸⁴

The Enhanced Transparency Framework (ETF) is established under Article 13. The ETF involves compulsory submission of national greenhouse gas inventory reports (NIRs) and information necessary to track progress in implementing and achieving a Party’s NDC.⁸⁵ The transparency framework is to be implemented in a facilitative, non-intrusive, non-punitive manner, respectful of national sovereignty, avoiding placing an undue burden on the Parties.⁸⁶ Biennial transparency reports (BTRs) are expected, and NIRs may also be provided as stand-alone documents for developed countries reporting annually. For developed country Parties, the BTR must also contain information on finance provided and mobilised, as well as on technology transfer and capacity building for developing country Parties. Each report goes through an independent Technical Expert Review (TER). The Technical Expert teams review the consistency of the information submitted with requirements in the ETF’s Modalities, Procedures and Guidelines (Article 13 MPG).⁸⁷ The review also requires consideration of the Party’s implementation and achievement of its NDC, consideration of the Party’s support provided, identifying areas of improvement for the Party relating to the implementation of Article 13, and, for those developing country Parties that need it in the light of their capacities, assistance in identifying capacity-building needs.⁸⁸ A report is prepared containing recommendations with respect to these mandatory reporting requirements. The TER is followed by a Facilitated Multilateral Consideration of Progress (FMCP).⁸⁹ This is a plenary dialogue which involves a biennial question-and-answer session and then a working group session.⁹⁰

The Paris Agreement’s Implementation and Compliance Committee was established under Article 15(1) as part of a ‘mechanism to facilitate implementation of and promote compliance with the agreement’ and the Conference of the Parties to the UN Framework Convention on Climate Change (UNFCCC) serving as the Meeting of the Parties to the Paris Agreement (CMA) adopted the Committee’s rules of procedure in 2021⁹¹ and 2022.⁹² Article 15(2) specifies that the mechanism ‘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’ and that the Committee is to pay particular attention to the Parties’ respective national capabilities and circumstances. The Committee is a standing body with geographically and politically representative composition. Its mandate is discrete from that of the other bodies and elements of the Paris Agreement’s overall accountability and compliance scheme previously discussed.⁹³ The Committee is to address individual Party’s performance within the parameters of the modalities and procedures (MP) adopted by the CMA in 2018 to guide the Committee’s work.⁹⁴

Consideration of a Party’s situation by the Committee may be initiated in three different ways depending on the issues of concern.⁹⁵ Firstly, as seen in many MEAs including the Montreal Protocol, a State may refer issues related to its own implementation or compliance to the Committee of its own motion.⁹⁶ Secondly, consideration of a Party’s situation by the Committee may be initiated automatically as a matter of course in certain types of situation where non-compliance is apparent on the face of the public record, as provided for under the Agreement in relation to a Party’s non-fulfillment of its obligation to communicate or maintain an NDC, its reporting obligations⁹⁷ or non-participation in the FMCP.⁹⁸ Thirdly, with a Party’s consent, the Committee may deal with cases involving significant and persistent inconsistencies between the information a State has submitted within the ETF and Article 13 MPG.⁹⁹ Additionally, the Committee has a role, as seen in MEAs, including the Minamata Convention on Mercury¹⁰⁰ and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal¹⁰¹ in identifying and making recommendations to the CMA on issues of a systemic nature, at its own initiative or on the request of the CMA.¹⁰²

The Committee is to constructively engage a Party at all stages, remaining in regular contact or making all efforts to do so.¹⁰³ The MP recognise several types of action that the Committee may take in order to help bring about a Party’s compliance with the Paris Agreement.¹⁰⁴ Firstly, the Committee may engage in a dialogue with the Party, to identify the challenges the Party is facing in implementing the Paris Agreement and make recommendations as well as share information on how to access support, thus acting as a ‘source of advice and assistance’.¹⁰⁵ Secondly, the Committee may assist the Party in its engagement with institutions that may be able to help meet its needs in relation to finance, technology and capacity building to help it better implement its obligations.¹⁰⁶ The Committee may make recommendations in this regard to the Party concerned, and communicate those recommendations to the relevant institutions. Thirdly, as in the case of compliance committees operating under other MEAs, the Committee may recommend a Party’s development of an action plan, providing assistance on request, and encourage a Party that has developed a plan to inform the Committee of its implementation progress.¹⁰⁷ Fourthly, in readily identifiable circumstances, the Committee may issue findings of fact regarding a Party’s non-participation in the FMCP,¹⁰⁸ or a Party’s non-submission of particular communications and reports.¹⁰⁹ These communications and reports comprise the communication (and maintenance) of an NDC,¹¹⁰ NIRs,¹¹¹ information necessary for tracking progress in implementing and achieving NDCs¹¹² and, in the case of developed country Parties, information on support provided or mobilised to developing country Parties, as well as communication of finance to be provided (ex ante) to developing countries.¹¹³

The Implementation and Compliance Committee’s work has to be considered in the context of the Paris Agreement’s accountability and compliance scheme as a whole. The Committee’s work complements the TER. The Committee provides a backstop in cases of repeated inaction, while the TER also performs aspects of a facilitative role. The FMCP that follows the TER process provides a plenary inter-State process enabling all States to take partial ownership of the drive for compliance. The Paris Agreement’s Global Stocktake, also mentioned, enables the efforts of all to be evaluated against appropriate benchmarks. Global Stocktakes will take place every five years, beginning in 2023, as a way to consider the combined, collective performance of all Parties. The Global Stocktake process collects and assesses technical information, leading to a discussion of the findings that will inform all Parties’ actions under the Agreement on an ongoing basis.¹¹⁴

The value added to the Paris Agreement by its combined accountability and compliance arrangements is clear. They can be expected to make a significant difference to the Agreement’s implementation. Their standout features include the way they embrace global and technical processes, including with plenary participation, as well as Party-specific compliance committee processes involving a higher level of facilitative engagement. Parties to the Paris Agreement will be able to turn to the Implementation and Compliance Committee to gain access to increased assistance with implementation, and for support in the adoption and rollout of action plans where needed. The Committee’s power to make findings of fact will also be significant for formal transparency as well as constituting a partial sanction for certain of States’ implementation failures.

Like the Paris Agreement, the IHR 2005 represent a body of international law where interdependence is strong and coordinated regulation is essential. The regulatory and administrative actions taken by States to give effect to their commitments will be crucial. Yet in the WGPR there appears to be as yet an insufficient focus on how new compliance arrangements could assist with helping ensure the implementation of international law on pandemic preparedness and response ‘on the ground’.

In summary, what does the Paris Agreement model offer in relation to the development of compliance machinery for the IHR and potentially more widely? Of all the features of the Paris regime, aspects of the Implementation and Compliance Committee’s role may be the most valuable to consider for transfer, combined with an appropriate form of prior technical review like the FMCP, which has some similarities with the idea of universal periodic reviews already under discussion and trial in the WHO. The Implementation and Compliance Committee is an independent standing body mandated to take an objective perspective.¹¹⁵ Concepts of dialogue, support and potentially ongoing processes underpin how the Committee will function. The CMA’s modalities and procedures specifically envisage this idea of dialogue,¹¹⁶ in which there is an exchange of communications elucidating a Party’s situation and the challenges it faces. The Committee’s independent status and express mandate to make recommendations and to share information on how to access support is important, together with the capacity to recommend a Party develop an action plan and to assist with this on request, also looking at a Party’s progress under the plan where a Party accepts the Committee’s encouragement to keep the Committee informed.¹¹⁷

The Committee’s power to make findings of fact is also potentially transferable, as is its systemic role, which could be valuable in the IHR 2005 and similar contexts to help identify needs for targeted multi-jurisdictional implementation assistance programmes. There is merit, too, in potentially transferring the global stocktaking notion to the IHR 2005, even taking into account that managing a diminishing planetary carbon budget is naturally different to preparations for preventing the international spread of diseases. Processes that will catalyse political motivation at the highest level have an important role to play.¹¹⁸ Global stocktaking in the pandemic context could embrace both States’ individual domestic pandemic readiness and the extent to which countries have jointly engaged in the necessary level of planning for international co-operation on all aspects of disease outbreak and pandemic management.

An overarching difference remains between the Paris Agreement and many international agreements, including the IHR 2005: States’ substantive emissions reductions targets in the Paris Agreement are not binding and indeed are individually determined by States themselves. The Paris Agreement’s compliance and accountability machinery is oriented around ensuring implementation of the Parties’ reporting obligations, although there is also potential for a Party to seek the Implementation and Compliance Committee’s engagement when struggling to meet its NDC target. In contrast, the IHR 2005 set down the substantive capacity outcomes that Parties are to achieve. This is a case of a fixed floor. Retaining such binding substantive legal commitments in the IHR 2005 and elsewhere makes sense, on balance. However as indicated in the next section of this chapter, for facilitative implementation and compliance machinery to work effectively in such contexts it may need to be taken as written that States’ underperformance will be indulged while they continue to make appropriate progress towards better implementation, keeping the spectre of State responsibility at a distance.

2.4 Convergence in the Application of Managerial and Enforcement Theory

In addition to the practical considerations addressed in the previous part of this chapter, the extent to which States’ populations are now physically, economically and legally dependent on one another also strengthens the theoretical basis for more widespread facilitative implementation and compliance procedures.¹¹⁹ In situations of intensified interdependence, the previously opposing managerial and rationalist theories of compliance converge to support reliance on facilitative compliance mechanisms. Rather than having to be forced to do so, it becomes increasingly rational for each State to change its conduct and comply as fully as possible with its international commitments. When a treaty addresses internationally shared regulatory and policy problems, it will be in a State’s own interests to comply thoroughly. Compliance by a State will directly reduce the threat posed to it, by reducing the scale of the problem. Compliance by a State will also indirectly reduce the threat posed to it because it will help induce compliance by others and encourage their full participation to protect internationally shared interests.

In sum, the world’s situation as contemplated by Abram Chayes and Antonia Handler Chayes’ seminal 1995 work on the managerial approach, The New Sovereignty,¹²⁰ has since moved on, into an era of intensified interdependence. Today, the reasons that States may do their best to comply with relevant obligations may include not only normative considerations such as their desire for good standing internationally as emphasised by the Chayes, but increasingly also a rational appreciation of their physical needs in an interdependent world. International compliance machinery employing a facilitative approach can assist States in meeting these combined goals.

2.4.1 Managerial Theory

The Chayes’ work in the 1990s captured vital insights into how compliance with international regulatory systems is effective when a ‘managerial’ model is adopted rather than an enforcement model. Consistent with the Chayes’ insights into the nature of implementation challenges in international regulatory systems, deficits in the implementation of the IHR 2005 are not, in general, caused by willful political decisions to go against States’ commitments but rather by insufficient capacity and prioritisation.¹²¹ As the Chayes saw it, in these circumstances, the complaint that international legal regimes ‘have no teeth’¹²² is likely to be misplaced; and an approach that seeks primarily to facilitate compliance rather than enforce it may be most productive.¹²³ Capacity is indeed the overarching problem in compliance with pandemic preparedness law, twinned with prioritisation issues.

Accompanying this insight is the understanding that levels of compliance and implementation will vary. In complex international regulatory systems, compliance is not an ‘on-off’ phenomenon; States’ conduct within a certain penumbra or zone will often be accepted as adequately conforming with their obligations.¹²⁴ Compliance and implementation become an activity to manage, or, from today’s perspective, to facilitate. What will keep treaty implementation and compliance at acceptable levels will be

For the most part, compliance strategies seek[ing] to remove obstacles, clarify issues, and convince parties to change their behaviour. The dominant approach is cooperative rather than adversarial. Instances of apparent non-compliance are treated as problems to be solved, rather than wrongs to be punished. In general, the method is verbal, interactive, and consensual.¹²⁵

Bringing about improved implementation and compliance will involve a series of measures and activities, usually starting with the data and its verification and then moving into more active management, identifying behaviour that raises significant compliance questions.¹²⁶ The process is initially exploratory, seeking to clarify the nature of the behaviour and surrounding facts and circumstances.¹²⁷ The next step in cases of persistent concern may be a diagnosis of the causes for non-implementation and non-compliance, and the aim here is to identify an obstacle that could be removed or solve problems standing in the way of implementation and compliance, such as capacity issues and the need for technical assistance or access to resources.¹²⁸ The process will be interactive.¹²⁹ This compliance and implementation model ties into the importance of justification and discourse as crucial elements in how international norms operate to control conduct, with questionable action to be explained and justified.¹³⁰ While the foundation of compliance remains the normative framework in the relevant treaty,¹³¹ transparency is core.¹³²

All these elements of the Chayes’ theory have provided valuable insights for the design of NCMs. However, at the same time, the globe is in a fundamentally different position to that of twenty-five years ago. Populations’ increasingly shared physical dependence on the health of Earth’s planetary systems has become starkly apparent, and now successive novel diseases frequently crossing species from animals to humans, reveal our vulnerability also in terms of collective health. The application of managerial theory increasingly overlaps with the application of rationalist theory.

2.4.2 Rationalist Theory

Political economists, led by George Downs and others, have traditionally insisted on the importance of enforcement, emphasising a rationalist approach.¹³³ Enforcement rather than management is the key to compliance, they say, in situations where there are strong incentives to depart from compliance, where treaties require States to pursue conduct themselves differently from that they would have pursued in the absence of the treaty, and where deep co-operation is lacking. This may initially appear to be the case in respect of pandemic preparedness and response, climate change and also problems such as the management of biodiversity on the high seas. But additional, competing, rationalist considerations increasingly logically feed into States’ assessment of the degree to which they will comply with such bodies of law. In circumstances of vital physical interdependence like those in which the world now clearly finds itself, sanctions for non-compliance are to a degree inbuilt insofar as a Party’s non-compliance will leave that Party more exposed to the global threats now faced. Experiences with the COVID-19 pandemic and severe weather events are illustrative. Depending on the Party’s profile relative to the threat, the increased exposure may be greater or lesser. And each Party needs also to reckon with the question of whether its non-compliance will encourage others’ non-compliance, ratcheting up the threat. Contrastingly, a State that adopts a policy of close compliance with relevant international legal obligations will rationally derive a range of direct and indirect benefits. By modelling good conduct for others, it will help bring about better compliance and better results globally, as well as enhancing the State’s reputation and political influence in ongoing negotiations to address critical problems.¹³⁴

2.4.3 Convergence of the Theories

The realities on which the theory in The New Sovereignty was built have evolved to embrace circumstances of deepened global interdependence. At this point in history, it is becoming increasingly rational for States to comply as a matter of self-interest with treaties designed to address pressing problems of global interdependence like the problems we see in the areas of climate change, pandemic prevention and high seas biodiversity. This means that facilitative, non-punitive compliance machinery, or ‘new’ generation compliance machinery, has a stronger theoretical basis now than before. Non-compliance mechanisms increasingly take the form of ‘facilitated implementation and compliance’ as with the Paris Agreement.¹³⁵ Getting to this point has not been straightforward. The adoption of the reporting and review processes for all Parties to the Paris Agreement represented a significant shift, given the previous ongoing resistance of developing countries including China and India.¹³⁶ However, all this strengthens the case for States to consider transferring appropriately adapted elements of the Paris Agreement’s facilitative compliance scheme both to international pandemic law and beyond.

2.4.4 International Courts and Tribunals and Questions of State Responsibility

At the same time, international courts’ and tribunals’ (ICTs) role as avenues for possible formal dispute settlement also continues to be valuable.¹³⁷ Adjudication remains available, where there is jurisdiction, in respect of States’ general obligations under customary international law regarding the prevention of harm as well as in accordance with the dispute settlement provisions of applicable treaties. And adjudication may lead to sanctions including modes of collective enforcement.¹³⁸ Adjudication is clearly still on the ‘menu’,¹³⁹ though as a side rather than a main course. It is understood that the operation of facilitative compliance systems and multilateral review processes is unlikely to be enough all the time on its own to persuade powerful countries to comply with all of their commitments. Access to dispute settlement will remain important as a broader aspect of compliance schemes.¹⁴⁰

Further, ICTs’ contribution to the authoritative clarification of international law is helpful. This may take place in contentious or advisory proceedings. The expected International Court of Justice¹⁴¹ and International Tribunal for the Law of the Sea¹⁴² advisory opinions on climate change are examples. The development of new advisory procedures within certain multilateral institutional frameworks, examples of which are discussed in later chapters of this book, are also a promising mechanism.¹⁴³ Such procedures may help bring about greater compliance by clarifying States’ or others’ obligations. In the meantime, traditional non-compliance procedures help to prevent breaches and harm in advance and ‘can be considered to work alongside and complement traditional dispute settlement processes rather than replace them’.¹⁴⁴ Today’s international legal regulatory problems should also be viewed in the broader context of reliance on ‘mosaic’ enforcement including through domestic administrative and judicial processes.¹⁴⁵ Flanking tools and principles may helpfully be brought to bear in all these contexts, including impact assessment, the precautionary principle and a dedication to greater equity within and across generations.

However, it is clear that NCMs have the potential to perform a special function in international law as it reconfigures itself in the course of the twenty-first century. They provide a shortcut to enhanced compliance in relation to the advancement or protection of shared international interests in an interdependent world. They are both less confrontational than inter-State procedures, and less beset by hurdles relating to standing. Where NCMs are relied on, the rules relating to the invocation of State responsibility move back-of-picture and the specific rules on initiation of non-compliance proceedings in the regime in question come to bear. There is no need to determine whether an individual State is an injured State or otherwise entitled to invoke the rules with which compliance is to be assessed and whether these rules are for instance obligations erga omnes partes. In this respect the advent of an era of greater reliance on NCMs would be an appropriate response to international law’s entwinement with increasing global interdependence.

What is the relationship, though, between the use of non-compliance procedures on the one hand and on the other hand dispute settlement in ICTs and State responsibility?¹⁴⁶ Generally it appears that the law on State responsibility will continue to apply where a State is not complying with its international obligations. Certain legal consequences attach including in respect of reparation to other affected States. And generally, it appears that it will remain open to States to go to international dispute settlement even while compliance procedures may be underway if there is an international court or tribunal with jurisdiction. States are slow to invoke the responsibility of other States and are even slower to seek formal international dispute settlement. But there is a palpable tension here. Non-compliance procedures in effect ask of States that they acknowledge their implementation of treaty commitments which leaves something to be desired, in order that this non-compliance machinery can be used to get help to these States so that they can achieve better implementation. So are States admitting to treaty breaches when they seek or receive help in the context of working with a compliance committee?

Martii Koskenniemi, who was with the Foreign Ministry of Finland at the time the Montreal Protocol negotiations took place, wrote then that non-compliance procedures could constitute specialised systems of State responsibility which would replace the general international law on State responsibility, in effect taking the question off the table for practical purposes.¹⁴⁷ But this feels unintuitive, because with the fuller range of NCMs now operating in international environmental law, we can see that it is possible there may be inbuilt limits on their reach and effect within each regime.¹⁴⁸ Scholars since have, in any event, tended not to endorse Koskenniemi’s view.¹⁴⁹

In closing, a few thoughts on the question of State responsibility are as follows. First, we should welcome the sense of flexibility-in-the-system that accompanies more widespread reliance on non-compliance machinery, and the indulgence of concerted efforts to improve implementation for the benefit of all in an interdependent world in which timely, preventive action to help protect shared interests is more valuable than remonstration post hoc. Second, given that non-compliance procedures will generally help address shared public interests, could we view the current situation as the blending of aspects of a more public or administrative law dimension into the international legal order, layering onto the more traditional, bilateral conceptions of international law as analogised with the private law of contract and tort?¹⁵⁰ Third, it may be possible to create semi-formalised safe zones around non-compliance processes, for instance agreeing clearly that the findings of compliance committees will not constitute the equivalent of res judicata or will be without prejudice to the findings made in any subsequent international dispute settlement proceedings. Fourth, we may find that States will be careful to try and ringfence the scope of the issues that they ask NCMs to address, although where issues are interlinked, there is likely always to be scope for a certain overlap with matters of State responsibility. States may be more comfortable if such committees are referred to as ‘implementation and compliance’ committees rather than NCMs. This allows scope for views that the improved conduct requested of States through such machinery may or may not relate to failed compliance attracting State responsibility. Depending on the circumstances it may be a matter only of improving States’ implementation of their obligations.

2.5 Conclusion

A world in which international law continues to grapple with the prevention of some of the greatest threats humanity has known to date is a world in which facilitative compliance linked with targeted support and capacity building must surely play a central role. Compliance machinery needs to be built on a supportive but serious ethos, enabling a well-informed and realistic approach, and taking into account the limitations of actors in situations where compliance is a challenge and equity an important consideration. Negotiating governments should consider the Paris Agreement’s compliance machinery (and the accumulated practice of reliance on NCMs under MEAs), when they consider the types of mechanism that could be put in place to help improve compliance with various relevant bodies of international law.

In international pandemic law and in other international legal contexts, States could do well to consider the way in which Paris Agreement-style accountability and compliance arrangements need to go beyond declaratory processes presenting States’ progress and involve independent, expert engagement with individual States’ implementation needs, including taking concrete steps to assist with requests for resources, capacity and remedial planning. These are crucial factors that will need to be seriously considered for introduction into implementation and compliance procedures if international law on pandemic prevention preparedness and response is to be sufficiently effective.

At the time this chapter was initially drafted, in January 2022, and informally circulated, negotiations on both the intended treaty on pandemic preparedness and response and on the BBNJ instrument were mid-stream. As part of its participation in the pandemic treaty negotiations, New Zealand put forward the suggestion in April 2022 that the Paris Agreement could be used as a model for non-compliance procedures under the new treaty.¹⁵¹ At the same time, the text of the expected BBNJ instrument was also evolving. Initially it was envisaged simply that the BBNJ agreement’s Conference of the Parties might in due course adopt co-operative procedures and institutional mechanisms to promote compliance and address cases of non-compliance.¹⁵² This text was itself in square brackets and at least one delegation (the United States) requested its deletion.¹⁵³ Nevertheless, the President of the negotiations, Ambassador Rena Lee of Singapore, retained the provision in the draft text, produced in July 2022, adding as an alternative a more extended five-paragraph compliance provision which would establish a compliance committee based closely in part on the Paris Agreement.¹⁵⁴ At the negotiations in August 2022 in New York, where New Zealand chaired the talks on the compliance issue, States refined this provision.¹⁵⁵

The non-compliance provision in the BBNJ text is likely to be of particular value within the BBNJ regime because the instrument’s practical effect will depend closely on compliance with procedural obligations, including commitments on information flow. Equity and environmental protection can best be assured with the necessary transparency and accountability, whether this be in the accessing of marine genetic resources or the conduct of appropriate environmental impact assessment in zones abutting the Area. An appropriate NCM will complement existing law of the sea dispute settlement machinery, facilitating provision of assistance to States who may be facing technical and political implementation challenges and enabling the international community to better protect populations’ mutually important interests for the long term. Inclusion of an appropriate NCM in the new pandemic treaty instrument, and in the negotiations for the new international legally binding instrument on plastic pollution, would be a similarly valuable step. Governments must be prompted more actively to ensure they adopt appropriate NCMs, sooner rather than later, in all relevant spheres.

3 The New Generation of Environmental Non-Compliance Procedures and the Question of Legitimacy

Malgosia Fitzmaurice

3.1 Introduction

This chapter will explore the evolution of Non-Compliance Procedures (NCPs). NCPs are designed in principle to facilitate and assist the compliance of States Parties with obligations deriving from Multilateral Environmental Agreements (MEAs), but potentially trigger harsher means to elicit compliance, such as suspension of a Party’s rights under an MEA. The chapter will begin by analysing the classical NCPs such as the NCP in the Montreal Protocol on Substances That Deplete the Ozone Layer (Montreal Protocol),¹ Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),² the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention),³ and the Kyoto Protocol.⁴ The chapter will then analyse new NCPs such as those established in the Paris Agreement⁵ and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam Convention)⁶ and the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention).⁷ This chapter also takes a new look at classical NCPs in the Montreal, CITES and Aarhus Conventions and at whether, in the years since they were established, compliance has been ensured by more facilitative than coercive methods.

NCPs’ functions raise questions of legitimacy; likewise, the powers of Conferences or Meetings of the Parties (COPs/MOPs) which decide ultimately on non-compliance in the majority of cases. Thus, the next step of the analysis will be the issue of the legitimacy of the functions of NCPs and COPs/MOPs in both old and new regimes. As will be further explained, the premise on which the legitimacy of the new generation of NCPs is hinged is the concept of facilitative compliance, and the exclusion of the possibility of far-reaching and radical measures of suspension in the rights of a Party to an MEA.

3.2 The Question of Legitimacy: General Introduction

The general question of the definition of legitimacy and its link to legality in international law is a subject which is still debated and largely unresolved. An in-depth discussion of this topic exceeds the framework of this chapter. As it has been aptly observed,

[l]egitimacy is often criticised as a notoriously slippery concept. It is defined in a myriad of ways by many different authors … Yet it is a meaningful concept because it seeks to explain why these addressed by an authority should comply with its mandates in the absence of perceived self-interest or brute coercion. A legitimate power is broadly understood as to mean one that has the ‘the right to rule’.⁸

According to Wolfrum,⁹ there are different elements which may legitimise authority. These elements include source-based legitimisation, procedure-based legitimisation and result-based legitimisation, or a combination thereof.¹⁰ In relation to source-based legitimisation, the classical view is that this derives from the consent of States. This is most pronounced in the case of treaties, in which international law obligations are legitimised through national institutions. Questions do remain in connection with the chain of legitimacy, such as the situations when some of the participating States are not democratically structured, but it is beyond the scope of this chapter to discuss these issues in depth.¹¹ Consent-based legitimacy is more complex in the case of customary international law in which the legitimising role of consent is less clear-cut than in relation to treaties. However, if customary international law is understood as a tacit agreement of States concerned, ‘then its ultimate source is the consent of States’.¹² More problematic is the view according to which the source of customary international law is the fictitious consent of States. In this view, customary international law is based on the voluntary acts of States ‘which they undertake in the awareness of their implications for the possible development of customary international law’.¹³ Finally, an important element of consent-based legitimacy is the form in which it is accorded by States. Consent can be given to one act, which results in a singular international obligation (static), or can conversely be accorded as a general authorisation for the exercise of a dynamic (evolutionary) function setting up a regime of governance, consisting of a series of acts, based on a single, general authorisation by States. Such a regime may modify the regime of governance.¹⁴

Authority can secondly be legitimised through adequate and fair procedures (such as the rules concerning the composition of an institution, or the rules relating to its decision-making procedures and participation).¹⁵ Public participation and transparency, according to Bodansky, are fairly weak forms of legitimation as they merely accord an opportunity for the public to communicate their views to relevant officials rather than enabling the public to participate in decision-making.¹⁶ Nevertheless, as will be analysed further, public participation and transparency play a pivotal role in NCPs’ legitimacy.

Outcome is the third and the last element potentially legitimising authority. This basis for legitimacy is more vague and less tangible than source and procedure-based legitimisation. In broad brushstrokes, if an institution acting on the basis of an established procedure does not achieve the expected results, then this may lead to the erosion of legitimacy.¹⁷

Wolfrum’s analysis of legitimacy is highly positivistic. In fact, the concept of legitimacy has not only a normative but also a sociological aspect. On the one hand, in its sociological aspect, it refers to popular attitudes about authority. As Bodansky writes, ‘[a]uthority, has popular legitimacy if the subjects to whom it is addressed accept it as justified’. Bodansky observes that ‘the more positive the public’s attitudes about an institution’s right to govern, the greater its popular legitimacy’. On the other hand, ‘legitimacy’ can have a normative meaning, referring to whether a claim to authority is well founded; and to ‘whether it is justified in some objective sense’.¹⁸ These two aspects of legitimacy are conceptually distinct.¹⁹ Bodansky has also opined that legitimacy in the context of international environmental law developed ‘through a consensual rather than an authoritative process’ and the phenomenon of authority plays only an ancillary role.²⁰

The next issue, which is subject to ongoing debate, is the question of the link between legality and legitimacy. There are highly divergent views on this subject and there does not exist one single approach which would gain general approval. It may be said that, as argued by Bodansky, legality plays a fundamental role in ensuring that the exercise of authority by an international institution can be connected to its treaty basis, which in fact is consent.²¹ However, Bodansky is also of the view that legitimacy is a broader concept than that of legality. For example, legality is not the only criterion for assessing legitimacy and the justification for exercising authority may also be based on wider extra-legal considerations and not be limited to legally binding rules.²²

The general notion of legitimacy adopted in this chapter will be grounded in the concept of legitimacy as based on consent accorded as a general authorisation for the exercise of a dynamic (evolutionary) function, setting up a regime of governance which consists of a series of acts based on a single, general authorisation by States. As mentioned, in Wolfrum’s analysis, such a general consent may modify the regime of governance. This form of consent is particularly apt in relation to environmental dispute settlement and the establishment and operation of NCPs. COPs/MOPs adopt decisions (most commonly on the basis of so-called enabling clauses contained in an MEA) to set up NCPs, which through a series of decisions, may contribute to the implementation of State Parties’ obligations, influencing the regime of governance. However, it may be added that legitimacy in relation to the operation of NCPs sits at the nexus of consent-based and procedural legitimacy. Procedural legitimacy (transparency, public participation) will be discussed further.

3.3 Conferences of the Parties/Meetings of the Parties: General Considerations

COPs and MOPs play a pivotal role in the functioning of NCP regimes. They ultimately decide on non-compliance and the measures which are to be imposed in the event of non-compliance. They are well placed to manage non-compliance. As the highest organs of an MEA, they exercise all-encompassing functions relating to the MEA, adopt the most important decisions and have an overview of the whole agreement.

There is a plethora of bodies established by various multilateral treaties whose functions go beyond just managing the treaty regime. However, it was the advent of MEAs in particular that initiated a fertile legal (if inconclusive) debate on the nature of the functions of COPs. When MEAs began to be established after the 1972 Stockholm Conference on the Human Environment, COPs were created in order to make the management of MEAs more efficient and flexible, in contrast to previous bureaucratic arrangements. The functions of COPs have evolved beyond those of the early, basic COP with limited powers as in the Ramsar Convention on Wetlands of International Importance.²³ The COP of the Ramsar Convention today enjoys wide powers, as do other COPs. The term ‘Conference of the Parties’ was first used in the 1973 Convention of Trade in Endangered Species of Wild Fauna and Flora (CITES). The original Article 6 of that Convention provided that the COP would ‘as the necessity arises, convene Conferences on the Conservation of Wetlands and Waterfowl’. It also stated that the COP had an advisory character. This Article was amended in 1986 in order to create a Conference of the Contracting Parties, tasked with the oversight and promotion of the Convention’s implementation. The reference to the COP’s advisory character was deleted. The 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter²⁴ created a body (the Consultative Meeting of States Parties) that enjoyed more powers. This body, however, lacked any express authority to establish subsidiary bodies and had very limited powers of supervision.

The powers of COPs today vary. Camenzuli, however highlights one common trend among contemporary COPs; namely that their powers are very broad, including their law-making powers. She has identified the following general powers: setting priorities and reviewing the implementation of the relevant convention based on reports submitted by governments; consolidating and analysing information from governments, NGOs and individuals to make recommendations to the Parties on the implementation of the convention; making decisions necessary for promoting the effectiveness of the convention; revising the convention when necessary; and acting as a forum for discussing matters of importance.²⁵ As a rule, the powers of COPs are set out in the referent treaty. However, certain treaties define COPs’ powers in an open-ended fashion. For example, the London Convention provides that COP is ‘to consider any additional action that may be required’ (Article XIV(4)(f)). The 1979 Convention on Long-range Transboundary Air Pollution²⁶ provides that the COP can ‘[f]ulfil such other functions as may be appropriate under the provisions … of the Convention’ (Article 10(2)(c)). The UNFCCC states that the COP is to ‘[e]xercise such other functions as are required for the achievement of the objective of the Convention’ (Article 7(2)). COPs often have the mandate to keep the implementation of the treaty ‘under regular review’ and make, within their mandate, the decisions necessary to promote effective implementation (see e.g., the Paris Agreement, Article 16, paragraph 4).

COPs’ functions cover both external and internal matters. Several of their functions can develop international law. They are the following: (i) powers of decision-making on the amendment and modification of conventions and the adoption of new protocols; (ii) decision-making and resolution powers; (iii) supervisory powers; (iv) interpretative powers; (v) powers in respect of the establishment of non-compliance mechanisms (vi) keeping under regular review the implementation of the treaty (e.g., Article 16(4) of the Paris Agreement). Through the reviewing process COPs may ‘examine specific difficulties of compliance and consider measures aimed at improving it’.²⁷ As previously observed, there is no uniform and consistent view on the legal nature of the COPs in scholarship. The most prevalent view is that they are of a hybrid character, positioned between issue-specific diplomatic conferences and the permanent plenary bodies of international organisations, and that they exercise their functions at the interface of the law of treaties and the law of international organisations.²⁸ They constitute useful fora for State Parties to evolve treaty regimes and co-operate. They are treaty bodies in the sense that they are created on the basis of a treaty, but they should not be equated with bodies that comprise independent experts or bodies with a limited membership.

The extensive range of functions of MEAs is an example of so-called creative legal engineering. The powers of the organs established by MEAs, in particular COPs, gave rise to varying views regarding the nature of convention organs and bodies endowed with decision-making powers. According to one view, they can be seen as free-standing entities, involving institutional arrangements, or structures, which are independent from the Parties, and having, at least to a certain extent, an autonomous character in the sense of having (i) their own law-making or rule-making powers (or at least, the power to generate or alter obligations) and (ii) the power to formulate, or operate, mechanisms within the treaty regime, such as compliance mechanisms, which may have effects that are binding on the Parties. The Kyoto Protocol²⁹ granted a very broad functional remit to its MOP: ‘The Conference of the Parties shall define the relevant principles, modalities, rules and guidelines, in particular for verification, reporting and accountability for emissions trading. Any such trading was to be supplemental to domestic actions for the purpose of meeting quantified emission limitation and reduction commitments.’ It is clear that the MOP of the Kyoto Protocol was empowered to fill in the gaps in the text of the treaty and it has been the MOP that has also set out the modalities for the operation of the treaty’s mechanisms such as emissions trading, joint implementation and the clean development mechanism.

Churchill and Ulfstein refer to institutions such as COPs and MOPs as ‘autonomous institutional arrangements’ (AIA).³⁰ Alternatively we could adhere to the view that COPs can be seen as no more than a form of diplomatic conference providing a continuous, or at least regular, context within which decisions can more readily be made than through the calling of ad hoc diplomatic conferences. In fact, it is submitted that COPs /MOPs may take on the character of either an AIA or a diplomatic conference, depending on both the substantive nature of what is discussed, and on whether or not their decisions will require subsequent validation to become binding on the Parties.

3.4 Non-Compliance Procedures: General Considerations

This section will deal with so-called non-compliance procedures, which concern measures directed at the Parties to MEAs in cases of non-compliance with treaty provisions or the decisions of COPs. Non-compliance procedures can be considered quasi-legal, as they, with the possible exception of the Enforcement Branch of the non-compliance mechanism established under the Kyoto Protocol, do not result in formally binding decisions. Non-compliance procedures do, though, uniformly address deficits in the implementation of MEAs. It has been said that they ‘counteract, by means of cooperative approaches, the symptoms and causes of failure by Parties in the implementation of, and compliance with, their obligations’.³¹ Frequently, non-compliance is not the result of wilful disobedience, but due to a lack of capacity to implement a treaty. Therefore, NCPs also address the root causes of failure to implement a treaty, such as the need for capacity building and reduction of compliance costs; the functions of the Paris Agreement’s Compliance Committee provide a good example.³²

However, NCP decisions on non-compliance carry great weight and they have proven to be a very effective mechanism of engendering compliance. Not all decisions on non-compliance are referred to COPs/MOPs. For example, the Paris Agreement’s Compliance Committee reports annually to the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA) but adopts it decisions autonomously. Further, in its decisions ‘[t]he Committee may identify issues of a systemic nature with respect to the implementation of and compliance with the provisions of the Paris Agreement faced by a number of Parties and bring such issues and, as appropriate, any recommendations to the attention of the CMA for its consideration’.³³

Since the establishment of a Non-Compliance Committee under the Montreal Protocol in 1992, it has been a common practice of States Parties to MEAs to create treaty bodies, called ‘Compliance’ or ‘Implementation Committees’ (or both) which have the function of determining a State Party’s compliance with its international obligations. NCPs may be established in the treaty itself (e.g., the Paris Agreement) or on the basis of so-called enabling clauses in MEAs, which provide for the establishment of such a procedure by a decision of the relevant COP. An example of this is found in Article 8 of the Montreal Protocol.³⁴ However in a few cases such NCPs have been established without such an authorisation. For example, the NCP in the Basel Convention on Transboundary Movement of Hazardous Wastes,³⁵ was established without an enabling clause in the Agreement. NCPs are designed to respond to a breach of environmental obligations in the multilateral, not bilateral, context. The multilateral context is capable of accommodating the type of obligations which are of a character relevant to community interests in a truly satisfactory manner. Environmental obligations, in particular obligations relating to global issues, are not reciprocal in nature. For this reason, the classical settlement of dispute procedures as envisaged by Article 33 of the UN Charter, which are bilateral in nature, are perhaps less suitable for addressing non-compliance in a multilateral context and remedying non-compliance in respect of global issues such as climate change, and the protection of biodiversity or the ozone layer.

Legal procedures such as judicial and arbitration are different in nature, as they are adversarial, rendering binding decisions, based on third-party application of the law, and their legitimacy has its roots in different justifications. The (quite extensive) judicial practice in environmental matters before courts and tribunals has generated some critical comments. The judicial settlement of environmental disputes has been mostly focussed in the International Court of Justice (ICJ) and the International Tribunal for the Law of Sea (ITLOS). It may be said that there have been certain environmental considerations in the jurisprudence of the World Trade Organization, but they have essentially been analysed from the point of view of a limitation to the liberalisation of trade.³⁶ The European Court of Human Rights (ECtHR) has dealt with a number of cases where environmental harm was interfering with private and family lives (Article 8 of the European Convention on Human Rights (ECHR)).³⁷

There has been some support in the literature for the view that environmental disputes are amenable to judicial settlement partly due to the ‘hardening’ of the fabric of international environmental law.³⁸ This view is not entirely shared by the author of this chapter. The existing jurisprudence of international courts and tribunals has admittedly relied to some extent on principles of international environmental law and in some instances even clarified and developed them. However, international courts and tribunals (in particular the ICJ) prefer to apply well-tested principles of general international law and their attempts to venture into the realm of pure international environmental law have often been subject to severe criticism. An example is the ICJ’s pronouncements in Costa Rica v Nicaragua regarding compensation for environmental damage which demonstrate that the Court has not entirely grasped the particularities of international environmental law.³⁹ It was stated in this regard that ‘overall, the judgment demonstrates that the law on this topic may not be completely settled and there is plenty to argue about in future cases’.⁴⁰ The Court was much more comfortable in invoking within the framework of international environmental law the classical Chorzow Factory pronouncement according to which a responsible State has to ‘wipe out all consequences of a wrongful act’.⁴¹

There are also alternative explanations as to why NCPs are more suited to deal with environmental non-compliance than traditional dispute settlement procedures. It may be that States prefer NCPs due to the fact that they exercise more control over the whole process and its result compared to third-party mechanisms, such as judicial or arbitral procedures. NCPs have less stringent effects; decisions are not final in the form of res judicata and are less intrusive. NCPs also favour prevention by relying on monitoring, verification or reporting which better suits the aims of international environmental law.⁴² NCPs’ character is well defined by reference to the Mechanism for Promoting Implementation and Compliance with the Basel Convention.⁴³ In its Objectives it is stated that

The objective of the mechanism is to assist Parties to comply with their obligations under the Convention and to facilitate, promote, monitor and aim to secure the implementation of the compliance with the obligations under the Convention.⁴⁴

The mechanism’s nature is described in the following terms:

The mechanism shall be non-confrontational, transparent, cost-effective and preventive in nature, simple, flexible, non-binding and oriented in the direction of helping parties to implement the provisions of the Basel Convention. It will pay particular attention to the special needs of developing countries and countries with economies in transition, and is intended to promote cooperation between all Parties. The mechanism should complement work performed by other Convention bodies and by the Basel Convention Regional Centres.⁴⁵

There are several NCP mechanisms which follow more or less the classical mechanism set out under the Montreal Protocol. The main features of the NCP of the Montreal Protocol are its facilitative character and transparency. In addition, the NCP under the Montreal Protocol follows the requirements of due process: notification, the right to a fair hearing and impartiality. Although the NCP is not a judicial procedure, it has certain characteristics, such as the right to a fair hearing, which according to paragraph 10 of the NCP, ensures that a Party potentially in non-compliance has the right to participate in the consideration by the Committee of relevant submissions.

However, although the main feature of the Montreal Protocol NCP is its facilitative character, one of the measures that may be adopted in cases of non-compliance is the suspension of a State Party’s treaty rights. In the case of the Kyoto Protocol, in particular, the consequences of a finding of non-compliance through the NCP were onerous when a State Party had failed to comply with its emissions reduction target. Yet it may be said that the far-reaching powers of the NCP mechanism under the Kyoto Protocol are unique and in the view of the author are not representative when it comes to drawing conclusions concerning the legitimacy of NCPs in general, also taking into account previous (older) generation mechanisms.⁴⁶

This controversial aspect of non-compliance under the Kyoto Protocol is excluded from the regime of the Paris Agreement.⁴⁷ Article 15 of the Paris Agreement establishes a Compliance Committee as a mechanism to facilitate implementation and promote compliance with the Agreement. The task of the Committee is explicitly facilitative: ‘The Committee is expected to enhance the effective functioning of the Paris Agreement both by encouraging parties to implement the Agreement and by holding them accountable for aspects of their performance. This should build confidence and trust among the parties.’⁴⁸ The Committee is a standing, expert body with a mandate to address situations related to the performance of individual Parties. The procedure under the Paris Agreement has been agreed as follows:

1. 1. The mechanism to facilitate implementation of and promote compliance with the provisions of the Paris Agreement established under Article 15 of the Agreement consists of a committee (hereinafter referred to as the Committee).

2. 2. The Committee 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.

3. 3. The Committee’s work shall be guided by the provisions of the Paris Agreement, including its Article 2.

4. 4. In carrying out its work, the Committee shall strive to avoid duplication of effort, shall neither function as an enforcement or dispute settlement mechanism, nor impose penalties or sanctions, and shall respect national sovereignty.⁴⁹

The functions of the Committee are elaborated in paragraphs 20 to 27, as well as paragraphs 32 to 34 (Consideration of Systemic Issues) of the Annex to Decision 20/CMA.1, titled ‘Modalities and Procedures for the Effective Operation of the Committee Referred to in Article 15, paragraphs 1-3’. Paragraph 22(a) of the Modalities and Procedures provides that the Committee will initiate consideration of issues which relate to the core legally binding obligations under the Paris Agreement. These are cases where a Party has not:

1. (a) Communicated or maintained a nationally determined contribution (NDC) under Article 4 of the Paris Agreement, based on the most up-to-date status of communication in the public registry referred to in Article 4, paragraph 12, of the Paris Agreement;

2. (b) Submitted a mandatory report or communication of information under Article 13, paragraphs 7 and 9, or Article 9, paragraph 7, of the Paris Agreement;

3. (c) Participated in the facilitative, multilateral consideration of progress;

4. (d) Submitted a mandatory communication of information under Article 9, paragraph 5, of the Paris Agreement.⁵⁰

The innovative nature of the measures which may be adopted by the Compliance Committee under the Paris Agreement merits attention.

The view has been expressed that the Committee’s architecture and functions ‘are designed in such a way as to provide for the legitimacy, continuity, stability, and predictability of its activities’ and that ‘[i]ts operation will be an important cornerstone of the Agreement’s legitimacy, effectiveness, and longevity’.⁵¹

According to paragraph 30 of the Modalities and Procedures, ‘the Committee shall take appropriate measures’. These may include the following:

1. (a) Engage in a dialogue with the Party concerned with the purpose of identifying challenges, making recommendations and sharing information, including in relation to accessing finance, technology and capacity-building support, as appropriate;

2. (b) Assist the Party concerned in the engagement with the appropriate finance, technology and capacity-building bodies or arrangements under or serving the Paris Agreement in order to identify possible challenges and solutions;

3. (c) Make recommendations to the Party concerned with regard to challenges and solutions referred to in paragraph 30(b) above and communicate such recommendations, with the consent of the Party concerned, to the relevant bodies or arrangements, as appropriate;

4. (d) Recommend the development of an action plan and, if so requested, assist the Party concerned in developing the plan;

5. (e) Issue findings of fact in relation to matters of implementation and compliance referred to in paragraph 22(a) … .⁵²

The list of measures is a result of long and complex negotiations; thus, their application requires caution from the Committee. The Committee has discretionary powers to apply the measures. However, when doing so, ‘its decision is to be informed by the legal nature of the relevant provisions of the Agreement and the comments received from the party concerned, and the Committee “shall” pay particular attention to the national capabilities and circumstances of the party concerned.⁵³ Special circumstances of LDC [Least Developed Countries] and SIDS [Small Island Developing States], as well as situations of force majeure, are to be recognized, ‘where relevant’.⁵⁴ Under clauses (b) and (c) the Committee fulfils a facilitative role and under clause (d), similarly to other MEAs, it may recommend the development of an action plan.⁵⁵ Measure (e) only relates to the matters referred to in paragraph 22(a). This measure was the subject of much debate. The measure sits in contrast with the facilitative nature of the mechanism and has the potential to be confrontational.⁵⁶ A compromise was reached that under paragraph 22(a), any ‘finding of fact’ ‘would relate to readily identifiable circumstances of non-compliance with a binding obligation, such as the non-submission of a report … ’ and that ‘such a finding would lead to the logical conclusion that the party was in non-compliance, but without a formal finding of non-compliance by the Committee’.⁵⁷ There are two interesting features of this measure: it is based on the legal nature of the provisions concerned; and

the Committee could issue findings of fact in various ways. ‘Issuing’ could, for example, take the form of a public statement, or a letter to the party, or be included in the Committee’s annual report to the CMA, or a combination of the above. This step remains to be clarified.⁵⁸

As we can see from the Paris Agreement NCP regime, very harsh measures of suspension have been abandoned. There is a marked evolution in the recent NCPs, departing from the ‘classical’ regimes based on hard measures. This is not the only recent NCP which has abandoned harsh measures in cases of non-compliance and replaced them with a facilitative approach. The Rotterdam Convention has also elaborated an NCP where the possibility of a suspension in the rights of a Party to a treaty has been eradicated. Both the Compliance Committee and the Conference of the Parties will have recourse in cases of non-compliance to measures which offer assistance rather than punish.⁵⁹ A similar soft approach has been adopted by the Implementation Committee of the Water Convention.⁶⁰ This Convention also defines its compliance procedure as facilitative, supportive and collaborative in nature (Articles I and XI). The means to suspend a Party’s rights exist but have never been used. The Committee has the jurisdiction to render Advisory Opinions, which are outside the remit of compliance (‘The advisory procedure is aimed at facilitating implementation and application of the Convention through the provision of advice by the Committee and shall not be regarded as alleging non-compliance … ’ (Article V)). Such a procedure may be requested by the Parties in respect of difficulties in implementing the Convention vis-à-vis each other, and/or non-Parties (subject to their consent) or by a Party in respect of its own compliance difficulties. The Parties or non-Parties considered to be potentially concerned and which choose not to participate in the advisory procedure will be kept informed of its progress. The Committee provides advice and assistance for individual Parties and groups of Parties in order to facilitate their implementation of the Convention.⁶¹ Such a procedure is an entirely unique and new way of solving disputes between States in the most non-confrontational manner.⁶²

It may be added that the International Law Commission in its Guidelines on the Protection of the Atmosphere has included a provision on non-compliance, which follows the patterns set out in other MEAs.⁶³ However, it is worth noting that Special Rapporteur Murase explained that he ‘favoured cooperative compliance mechanisms, meant to give assistance to a non-compliant party, over punitive or enforcement mechanisms, which were based on the responsibility of States and intended to place penalties on the non-compliant party’.⁶⁴

3.5 Legitimacy and NCPs

Addressing the question of legitimacy of NCPs, Savaşan refers to the legal basis of their establishment, that is, whether an enabling clause in the primary treaty was the basis of the NCP; or whether they were established without such a clause.⁶⁵ According to Savaşan, the problem of legitimacy only arises when such a clause is absent and a COP decision establishes a ‘hard’ NCP with binding outcomes imposing obligations that go beyond the applicable treaty.⁶⁶ Such an approach would eliminate from the category of objectionable NCPs the new generation of ‘soft’ NCPs (which do not include far-reaching measures in relation to a non-compliant State), as represented by the NCP in the Paris Agreement. Savaşan is of the view that the application of punitive measures applied in NCPs (e.g., under the far-reaching regime of the Kyoto Protocol) may enhance the deterrent effect of an NCP mechanism but also challenge their legitimacy and therefore ‘should be applied in line with the rules of international law’.⁶⁷ It may be argued that in the event of very harsh and binding measures under NCPs, only the amendment of the treaty may justify them.⁶⁸

Only if such measures are applied in accordance with international law will compliance be enhanced without compromising legitimacy. Such an application of punitive measures would be in accordance with determinacy (clear rule of law) and fairness.

As mentioned above, procedural safeguards are also elements of legitimacy. As persuasively argued by Savaşan, within NCP regimes, procedural safeguards protect legitimacy. These safeguards may include a preliminary phase of prior consultation between the Parties concerned; due process; and transparency of proceedings. Rights of confidentiality and transparency are guardians of fairness in these mechanisms.⁶⁹ However, there are also some procedural elements of legitimacy which can be improved. For example, the role of civil society in the Montreal Protocol NCP does not meet the element of transparency. Civil society can take part in the proceedings as observers only if the secretariat notifies this and no Party objects. Contrastingly, under the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)⁷⁰ NCP, any member of the public, that is, any natural or legal person, may submit a communication to the Committee, which definitely enhances legitimacy.⁷¹

Questions regarding other aspects of the legitimacy of NCPs should not detract from the general issue of their usefulness in protection of the environment, that is, the outcomes. What is the relationship between the general usefulness of NCPs and their legitimacy? It appears that the procedural aspects of legitimacy (which have been mentioned), play a dominant role in their usefulness (outcomes). For example, the participation of civil society undoubtedly enhances the overall effectiveness of these mechanisms. However, the issue of the legitimacy of NCPs remains a broader one, encompassing all constitutive elements that is, substantive and procedural aspects and the outcomes, all entwined. The theory of consent-based legitimacy alone does not fully reflect the nature of legitimacy in these procedures, which is constituted of various elements, all of equal importance.

In the view of the author, the multilateral system on which NCPs are based makes them much better suited to address the issues concerned than classical settlement of disputes predicated upon bilateralism. NCPs indeed serve a common interest of States in the protection of the environment. That said, the UNECE Water Convention Implementation Committee, within the paradigm of its advisory function, can also, for instance, facilitate assistance within the bilateral context. This function co-exists with the NCP, which is based on multilateralism.

It may be added that NCPs, which at present are based on providing assistance rather than on imposing stricter measures in cases of non-compliance, are also better equipped to fulfil environmental aims than adversarial mechanisms. However, in this context, the empowering of the Paris Agreement Compliance Committee to make ‘findings of fact’ should be recalled. The Paris Agreement’s system of compliance and the role of the Committee has been aptly described in the following way: ‘The Committee can only apply facilitative measures, and cannot impose penalties, fines, fees, sanctions, or enforcement measures of any kind. However, there will be an element of public and political accountability associated with the Committee’s recommendations, including the “findings of fact”, as these relate to the non-performance of the relevant provisions.’⁷²

The adoption of harsh measures in case of non-compliance raises questions. However, NCPs in modern practice in general either do not include such measures or refrain from applying them. For example, the main measure employed by the Committee and the MOP in the Aarhus Convention to ensure improvement in compliance (as applied in 41 per cent of cases) has been the ‘recommendation’ (paragraph 37(b)). A review of practice up to 2019 indicates the MOP has issued just one ‘caution’ (paragraph 37(f)). Cautioning, together with suspension (but not withdrawal) of special rights and privileges⁷³ is considered a ‘more confrontational’ means of enforcing compliance.⁷⁴ The contemporary practice of the Montreal Protocol NCP evidences that indicative measure ‘c’ has not been resorted to but rather the provision of encouragement and facilitation to States in non-compliance. There is not a strict adherence to ascending order of the measures, as assistance (indicative measure ‘a’) is linked with caution (indicative measure ‘b’), thus applying a mild ‘carrot and stick’ approach. However, the harshest indicative measure ‘c’ has not been applied, thus softening the measures. While the MOP in its decisions refers to the possibility of recourse to indicative measure ‘c’, it has never applied this measure in contemporary practice. These examples clearly indicate that in the classical NCP under the Montreal Protocol there is a noticeable trend to avoid withdrawal of a Party’s rights and privileges.⁷⁵

In respect of measures under the NCPs leading to assistance (providing that all procedural safeguards are upheld) rather than punishment, the question of legitimacy in a traditional sense (based on consent) may not arise. The modern trend is exemplified by the NCP in the Paris Agreement, the Rotterdam Convention and the approach of the International Law Commission’s (ILC) special rapporteur, Shinya Murase, with the focus on co-operative efforts combined with procedural safeguards.

Savaşan has observed that the concept of legitimacy is very complex, consisting of a multitude of diverse elements. It may be that such complexity commands further detailed examination and empirical studies ‘on the distinctive characteristics of different institutions and to develop legitimacy perspective for each one of these’.⁷⁶ There is a great variety at present of these mechanisms that require case-by-case studies of legitimacy, based on theory and practice. It may be observed, however, that even if various NCPs merit a divergent analysis, there is a visible and common trend towards the adoption of softer measures, influencing the calculus of legitimacy.

3.6 Conclusions

The legal character and the different objectives of NCPs have evolved and fundamentally changed. Previous, classical procedures relied frequently on harsh methods, such as the CITES NCP regime under which States face suspension of trade rights. The new generation of NCPs have a different ethos and telos. Their structure, functions and measures are different and are based on the premise of facilitation. Such an evolution warrants a different approach in ascertaining the legitimacy of decisions adopted by compliance bodies, and COPs/MOPs, which have all become more facilitative bodies. In calculating the legitimacy of such new generation NCPs, procedural aspects come to the fore, focussing on transparency, and the participation of civil society, and so on, rather than more exclusively on State consent.

It is submitted that the diametrically different character of the new generation of NCPs should also be reflected in the change of the names of ‘Non-Compliance Committees’ into ‘Implementation Committees’ (a nomenclature already used in many MEAs). The new generation of NCPs are in fact implementation and facilitation bodies, whose functions are very different from the classical ones. A new classification of NCPs should be established, as the traditional approaches do not reflect the substantively divergent phenomenon of the new and facilitative NCPs. It may also be noted that despite the quite detailed and at times far-reaching obligations imposed on States by certain MEAs (such as the Montreal Protocol and the Aarhus Convention), COPs/MOPs have refrained from the imposition of harsh measures to ensure compliance, thus confirming the general trend of co-operation and understanding.

4 International Courts versus Compliance Mechanisms through the Lens of the Gabčíkovo–Nagymaros and Bystroe Canal Cases

Laura Pineschi

4.1 Introduction

Recent developments in international environmental law are increasingly characterized not only by the concern to ensure the effectiveness of existing international environmental obligations, but also by a growing awareness of the need to adopt a comprehensive and integrated approach to the management of natural resources. The latter implies the consideration of environmental protection as a collective interest, having due regard to the interdependence between local and global ecosystems, on the one hand, and to the integration of community legal interests into the management of natural resources shared by two or more States, on the other.

Non-compliance mechanisms (NCMs) are generally assumed to be a better mechanism than judicial settlements for achieving both the above-mentioned aims. This chapter intends to assess the correctness of this assumption through the analysis and comparison of two cases, which are characterized by some common features: the Gabčíkovo–Nagymaros (G/N) and the Bystroe Canal cases. Both relate to the planning of great infrastructure projects (the construction of a dam and a canal, respectively) with a possible environmental impact on the same water system (the River Danube and the Danube Delta, respectively). Both gave rise to international disputes, that, despite a judgment of the International Court of Justice (ICJ) (in the G/N case)¹ and the triggering of non-compliance procedures (NCPs) under the Espoo² and the Aarhus Conventions³ (in the Bystroe Canal case),⁴ are still pending or have remained substantially unsettled. Accordingly, certain lessons may be learned from an analysis of these proceedings.

This chapter will compare the approaches adopted by the ICJ in the G/N case and by competent monitoring bodies dealing with the Bystroe Canal case, with the aim of evaluating their respective contributions to: balancing the Parties’ conflicting interests; stimulating a meaningful and fruitful co-operation of the Parties towards an agreed solution; and integrating the interests of the Parties concerned with the interests of other States, individuals or group of individuals and the global environment. Some remarks will follow on the lessons learned from the two cases, drawing some general conclusions on the effective advantages of the mechanisms employed in each case.

4.2 The Gabčíkovo–Nagymaros Case

The ICJ judgment on the G/N case is one of the ICJ’s decisions most quoted and debated by international environmental scholars. Suffice here to recall that the Parties to the dispute – Hungary and Slovakia – strongly disagreed on the implementation of a bilateral treaty, concluded by Czechoslovakia and Hungary in 1977, that provided for a joint investment for the construction of ‘a single and indivisible’ barrage system on the Danube River⁵ consisting of two systems of locks: one at Gabčíkovo (on the Czech side) and one at Nagymaros (on the Hungarian territory).⁶

Divergences of the Parties in the implementation of the 1977 Treaty emerged from the very beginning. While Czechoslovakia was determined to pursue the project, Hungary was very reluctant. In particular, the latter contended that the aquatic environment of the Danube, the water volume and quality and the biodiversity of the region risked being severely jeopardized by the project.⁷ After the suspension (and subsequently, the abandonment) of the works by Hungary in 1989 and the undertaking of an alternative solution by Czechoslovakia (including the so-called ‘Variant C’, entailing a unilateral diversion of the Danube on its territory),⁸ on 7 April 1993, Hungary and Slovakia⁹ turned to the ICJ, acknowledging that ‘differences have arisen’ regarding the implementation and termination of the 1977 Treaty and that the Parties ‘have been unable to settle these differences by negotiation’.¹⁰

The ICJ ruled in 1997 that Hungary was not entitled to unilaterally suspend the 1977 Treaty; the Treaty was still in force and the joint regime for its implementation was a basic element of the agreement. The Parties were thus required to ‘negotiate in good faith in the light of the prevailing situation and … to take all necessary measures to ensure the achievement of the objectives of the Treaty of 16 September 1977’.¹¹ In particular, Hungary and Slovakia had ‘to find an agreed solution within the co-operative context of the Treaty’,¹² taking into account, on the one hand, ‘the objectives of the Treaty, which must be pursued in a joint and integrated way’ and, on the other hand, ‘the norms of international environmental law and the principles of the law of international watercourses’.¹³

Nearly a quarter of a century after the judgment, the negotiations between Hungary and Slovakia are pending¹⁴ and no agreed solution is expected in the short term.¹⁵

4.2.1 Balancing Conflicting Interests and Supporting the Parties’ Co-operation

The ICJ judgment in the G/N case is considered a ‘balanced solution’ by some scholars. Looking more closely, however, this expression has been used in its most extreme meaning (‘[n]either side can claim a victory’)¹⁶ or in a meaning different from the legal one (a ‘“politically” palatable decision’).¹⁷

More generally, serious doubts remain as to whether the Court fully exercised its function. First, the judgment has received much criticism for failing to clarify the obligations of the Parties¹⁸ or, at least, for omitting ‘to define the rights and obligations of the Parties with sufficient precision’.¹⁹

Notably, it has been observed, on the one hand, that the special role attributed by the Court to the principle pacta sunt servanda ‘legitimized the status quo that emerged as a result of the mutual non-performance of [the bilateral Treaty of 1977]’.²⁰ On the other hand, the Parties themselves could be blamed for the continued non-resolution of the dispute. However, the ‘condemnation’ of the Parties to co-operation (‘go back and negotiate in good faith’)²¹ has been regarded as a major cause for the ‘ossification’²² of the dispute. The judgment ‘in a way exacerbated rather than help[ing] to solve the underlying conflict’.²³

Second, it has been remarked that the Court did not sufficiently assess the relevance and the weight of the evidence submitted by the Parties. Indeed, while ensuring that ‘most careful attention’ had been given to the ‘impressive amount of scientific material’ submitted by both States with the aim of ‘reinforcing their respective arguments … as to the ecological consequences of the project’, the Court concluded that ‘it [was] not necessary … to determine which of [their] points of view [was] scientifically better founded’.²⁴ The 1977 Treaty contained the mechanisms for the Parties to co-operate to address environmental considerations. The Court relied also on the assumption that the dangers invoked by Hungary were mostly of a long-term nature and uncertain. Accordingly, these perils, ‘without prejudging their possible gravity, were not sufficiently established … nor were they “imminent”’²⁵, as required by the plea of necessity under the ILC Draft Articles on State responsibility.²⁶

It is certainly worth noting that the Court made a site visit in April 1997, between the two rounds of oral pleadings.²⁷ In addition, due to the technical issues at stake, the tensions between the Parties and the polarization of their respective positions, it would have been desirable for independent experts to assist the Court before it delivered its judgment. Regrettably, the ICJ’s reluctance to appoint independent experts under Article 50 of its Statute and Article 67 of the Court Rules is well known and it is still a matter of extensive debate and criticism.²⁸

Third, negotiations have also been affected by ambiguities in the Court’s ruling. Accordingly, some controversial interpretations of the judgment²⁹ allowed both Parties to ‘… find sufficient legal ammunition to preserve their respective pre-litigation positions’.³⁰

As to the promotion of the Parties’ co-operation, only scant indications were provided by the Court to help the two governments to achieve an agreed solution. Starting from the assumption that ‘[i]t is not for the Court to determine what shall be the final result of these negotiations to be conducted by the Parties. It is for the Parties themselves to find an agreed solution’,³¹ Hungary and Slovakia were required to ‘look afresh at the effects on the environment of the operation of the Gabčíkovo power plant’ and to ‘find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side-arms on both sides of the river’.³²

Some general principles were explicitly mentioned by the Court to guide the Parties’ negotiations. First, good faith, which is inherent to the general duty pacta sunt servanda and to the duty of co-operation. The Parties were also required to find an agreed solution, taking into account the norms of international environmental law and the principles of the law of international watercourses.³³

Regrettably, however, the Court was unwilling to dwell upon on the existence and exact content of these principles, although this was one of the reasons for the lengthy dispute between the Parties.³⁴ The Court mentioned the obligation of prevention³⁵ and invoked the concept of sustainable development as aptly expressing the need to reconcile economic development with protection of the environment.³⁶ It declined, however, to explain its opinion with regard to the legal content of the latter, which is still one of the most controversial issues in international environmental law.³⁷ With regard to environmental impact assessment (EIA), the ICJ did not mention this term in its ruling. Neither did it assist the Parties in the reconciliation of their scientific and technical divergences.³⁸ Hungary and Slovakia agreed on the need to submit the joint project to EIA but disagreed on the substance of this decision-making process.³⁹ The failure by the Court to uphold the principle of precaution was also blamed by various scholars. In particular, the ‘state of ecological necessity’ – invoked by Hungary for justifying the suspension or termination of the 1977 Treaty – was considered by the Court exclusively from a legal perspective, that is, according to the parameters of the state of necessity under the law of State responsibility.⁴⁰ As a result, the Court imposed a much higher threshold⁴¹ than the one required by the precautionary principle, which relies on a basic assumption: scientific uncertainty.⁴²

As to the duty of co-operation in good faith, the Court observed – quoting its famous dictum in the North Sea Continental Shelf case⁴³ – that ‘[the Parties] are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it’.⁴⁴ Leaving aside any discussion on the effective compliance of the Parties with the duty to co-operate in good faith, the exact content of this obligation, as codified by Principle 19 of the 1982 Rio Declaration on Environment and Development,⁴⁵ remains controversial.⁴⁶

4.2.2 Integration of the Interests of the Parties Concerned with the Interests of Other States and of the Global Environment

One of the most remarkable aspects of the judgment in the G/N case is to be found in the special role that the rules on interpretation played in the legal reasoning of the Court. It was in fact through the method of evolutionary interpretation that the ICJ established a dynamic inter-relationship and integration between the bilateral treaty obligations undertaken by the Parties in 1977 and the general principles of international environmental law that had been developed after that date. Accordingly, sustainable development was integrated into the scope of the obligations that the Parties had undertaken under their bilateral agreement.

The management of the Danube was not handled, however, as a matter transcending the interests of single riparian States. The ICJ judgment focussed strictly on the rights and obligations of the litigating States inter partes.⁴⁷ No explicit mention of the interests of other riparian States or to the preservation of vulnerable ecosystems as an interest of the international community as a whole can be found in the Court’s ruling. Unfortunately, these considerations are also missing in more recent ICJ environmental jurisprudence.⁴⁸

It should finally be recalled that the representation of community interests through NGOs was only partially possible in the G/N case, due to the very limited role that NGOs can play in the context of contentious proceedings before the ICJ. An amicus curiae brief was prepared by two NGOs, but no reference was made to this brief in the judgment.⁴⁹ In any case, absent specific provisions in the Court Rules, no NGOs would have been entitled to make more than this indirect contribution.⁵⁰

4.2.3 Assessment

The previous remarks confirm the limits of traditional dispute settlement generally highlighted by international scholars. It has been observed, for instance, that ‘[i]nternational adjudication is supposed to be slow, cumbersome, expensive and, ultimately, ineffective’.⁵¹ Indeed, the judgment on the G/N case was rendered four years after the deposit of the special agreement between the Parties. This is ‘not a speed record for a case without procedural difficulties’;⁵² it must be acknowledged, however, that among the reasons that ‘[t]he Court was not quick to organize hearings’, was the fact that the ICJ was simultaneously dealing with other cases.⁵³ However, this is still a very long delay, when addressing significant environmental problems.

As mentioned, the judgment on the G/N case also confirms, on the one hand, that ‘judicial pronouncements serve rather to elucidate important principles than to achieve a concrete and detailed settlement by themselves’.⁵⁴ On the other hand, highly technical issues can hardly ‘be decided by lawyers. Allocation of responsibility for harm to specific actors is difficult, if not impossible … Problem-solving thus requires a less confrontational, more co-operative approach’.⁵⁵

It would be misleading, however, to conclude that the above-mentioned failures derive exclusively from structural limits of the judicial settlement of disputes or from its inadequacy in discharging a function for which it is not fully equipped. On the one hand, it could be argued that ‘by asking the Parties to negotiate a solution … the Court was abdicating the very responsibility that the Parties had assigned to it’.⁵⁶ On the other hand, the actions and omissions of all the Parties directly or indirectly concerned in the G/N case cannot be ignored. In particular, the slow development of fruitless negotiations between the two contending States is largely due to the high politicization of their dispute.⁵⁷ In addition, the lack of transparency that characterizes the ongoing negotiating process does not seem to be fully consistent with the general principles of international environmental law and, notably, with the principle of access to information.⁵⁸

The modest role played by other riparian States or international institutions in the solution of the conflict is also striking. Apparently, neither the European Union (which had been actively involved in the negotiations preceding the ICJ judgment)⁵⁹ nor the permanent bodies established under the Convention on Co-operation for the Protection and Sustainable Use of the River Danube (hereinafter: Danube River Protection Convention)⁶⁰ have significantly supported or facilitated the bilateral negotiations subsequent to the ICJ judgment.

Obviously, it can hardly be said that these entities or other riparian States are under a legal duty to intervene in the negotiating process. However, the issue clearly transcends the individual rights and duties of the Parties to the dispute due to the dramatic impact that the failure of their bilateral negotiations may have on the management of shared natural resources and the preservation of vulnerable ecosystems. A more proactive role in defence of a community interest should thus have been played by other riparian States or international institutions entrusted with specific competences in environmental matters.

4.3 The Bystroe Canal Case

The second case deals with NCPs and concerns the (re)construction⁶¹ of the Bystroe Canal in the Ukrainian sector of the Danube Delta. The Delta covers an area of approximately 5,800 km², shared by Romania (86 per cent of the area), Ukraine and Moldova – ensuring a connection for Ukraine to the Black Sea, as an alternative to the two existing routes through Romania. Romania is obviously concerned about the implications of the project for its economic and social system, but also about its impact on an area characterized by particularly vulnerable ecosystems. Due to its special features, the Danube Delta was included in the list of wetlands of international importance under Article 2.1 of the Ramsar Convention⁶² in 1991⁶³. It was also inscribed on the World Heritage List in the same year⁶⁴ and designated as a Biosphere Reserve under UNESCO’s Man and the Biosphere (MAB) Programme in 1998.⁶⁵

Ukraine notified Romania of its intention to develop the Bystroe Canal Project (BCP) in 2002, but it did not provide Romania with the information required under the Espoo Convention, including an EIA, which was completed after the project had already started.⁶⁶ Ukraine was also considered to be in breach of its obligations under the Aarhus Convention for not having informed the public of the project and of its related decision-making process.⁶⁷ The first phase of the BCP was completed in 2004; the final decision to continue with Phase II was taken in 2007, and in 2010 works related to its full-scale implementation started.⁶⁸

The actions and omissions of Ukraine in respect of its international obligations have been brought to the attention of (and monitored by) almost all institutional mechanisms established under the various international treaties and multilateral environmental agreements (MEAs) applicable to the area. The Danube Delta falls within the scope of four world treaties (the 1971 Ramsar Convention;⁶⁹ the World Heritage Convention;⁷⁰ the Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 23 June 1979);⁷¹ and the Convention on Biological Diversity⁷²) and five regional agreements: the Convention on the Conservation of the European Wildlife and Natural Habitats (Bern, 19 September 1979);⁷³ the Danube River Protection Convention; the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki, 17 March 1992);⁷⁴ as well as the already mentioned Espoo and Aarhus Conventions.⁷⁵

In this context, suffice here to recall that two NCPs under the Espoo Convention⁷⁶ were triggered by Romania in 2004 and 2007.⁷⁷ The latter complaint was submitted after the carrying out of an inquiry procedure on the request of the same country under Article 3.7 of the Convention.⁷⁸ The Inquiry Commission (a body composed of three independent experts appointed by the Parties concerned)⁷⁹ unanimously concluded that the BCP was likely to have a significant adverse transboundary impact in Phase I and that an even greater impact was expected in Phase II of the project.⁸⁰ In 2008, the Meeting of the Parties (MOP) declared Ukraine non-compliant with its international obligations and decided to issue a caution unless the Government of Ukraine stopped the works, repealed its final decision of 28 December 2007 concerning the BCP and took steps to comply with the relevant provisions of the Espoo Convention and the relevant decisions of the MOP.⁸¹ The Ukrainian government was also requested to fully implement the Convention’s provisions through: a revision of its legislative and administrative measures; the adoption of a strategy to be submitted to the Espoo Convention’s Implementation Committee by the end of 2009; and the negotiation of agreements and arrangements with neighboring countries under Article 8 of the Convention.⁸²

The above-mentioned caution to the Government of Ukraine became effective on 31 October 2008; nevertheless, no steps (or limited steps) have been taken to bring the project into full compliance with the Convention.⁸³ In 2021 the MOP welcomed various positive steps undertaken by Ukraine, including: the adoption of national measures on EIA, aimed at ‘fully align[ing]’ its national legislation with the provisions of the Convention;⁸⁴ an assessment of the environmental damage and the preparation of a draft plan of compensatory and mitigatory measures; the development of a new ‘Bystroe Route’ project and its notification to Romania.⁸⁵ However, the MOP has expressed deep concern as Ukraine has not yet fulfilled all its obligations under decisions IV/2, V/4, VI/2 and IS/1f.⁸⁶ Accordingly, the caution issued in 2008 is still effective.⁸⁷ The MOP has also reiterated that the continuation of dredging activities constitutes a further breach of the Convention.⁸⁸

An NCP was also triggered under the Aarhus Convention,⁸⁹ on the basis of a communication from the public⁹⁰ and a submission by Romania⁹¹; in 2005 the MOP found Ukraine non-compliant by failing to provide for access to information and public participation under Articles 4 and 6 of the Convention.⁹² After three cautions issued by the MOP in 2008, 2011 and 2014 for persistent non-compliance with its decisions,⁹³ Ukraine enacted the above-mentioned EIA provisions in 2016.⁹⁴ Accordingly, the Compliance Committee, having found that the country had adopted the necessary measures to bring its legislation into compliance with the Convention, concluded that the caution should be lifted and that Ukraine’s special rights and privileges under the Convention should not be suspended.⁹⁵

No doubt, a positive result has been achieved. It cannot be overlooked, however, that Ukraine has never abandoned the Bystroe Canal Project and that the case has been pending before the Implementation Committee and the MOP of the Espoo Convention for about eighteen years.

4.3.1 Balancing Conflicting Interests and Supporting the Parties’ Co-operation

The classical bilateral structure of traditional inter-State dispute settlement procedures is lacking under NCMs. The main concern of non-compliance bodies established under MEAs is to prevent non-compliance (or to bring a State back into compliance) with certain treaty obligations, acting in the common interest of all Parties to the MEA. This aim is pursued through a pragmatic approach and a procedure that is mainly characterized by an interactive dialogue, usually based on discussion of data, persuasion and international assistance for capacity building.⁹⁶

Indeed, the interactive dialogue promoted by the Espoo Convention’s monitoring bodies in the Bystroe Canal Project case was based on the findings of the Espoo Inquiry Commission⁹⁷ as well as on information provided for and comments made by both Parties. Persuasion has also been exercised through consultations and exchanges of letters between relevant institutions and Ukraine. International assistance has also been provided. First, the MOP requested the Implementation Committee to assist Ukraine in complying with its obligations, notably offering technical advice in bringing Ukraine’s domestic legislation into line with the Convention’s provisions.⁹⁸ Second, the MOP invited both Parties to seek advice from the Secretariat to help them develop bilateral agreements or other arrangements.⁹⁹ Third, international funding and other support to Ukraine for the revision of its national legislation¹⁰⁰ and for bilateral co-operation was also provided through the Secretariat. A similar approach was undertaken under the Aarhus NCP.

It is also worth noting that the promotion of an interactive dialogue does not exclude the adoption of more stringent measures in the context of NCMs, such as the cautions issued by the monitoring bodies of the Aarhus and the Espoo Conventions. Cautions are not expressly envisaged under the latter’s NCP. Nevertheless, their legitimacy can hardly be denied, as they are the result of a negotiating process and a final agreement of all contracting Parties in the context of one of their periodic meetings. Some decisions have also been considered severe, if not confrontational. For instance, as mentioned, Ukraine was urged by the decision of the MOP of the Espoo Convention ‘to repeal without delay the final decision of 28 December 2007 concerning the implementation of the [BCP] and not to implement Phase II of the project before applying fully the provisions of the Convention’.¹⁰¹ Also in this case, however, the MOP’s decision can be considered consistent with general principles of international environmental law and, in particular, with the principles of prevention and precaution.¹⁰²

4.3.2 Integration of the Interests of the Parties Concerned with the Interests of Other States and of the Global Environment 245

Under NCMs, bilateral conflicts are managed by a collective body that interacts with the Parties directly concerned, acting in the common interest of all contracting Parties. Accordingly, it can be assumed that under NCMs dealing with the BCP, not only the interests of Romania, but also those of other Parties to the relevant MEAs have been taken into account or, at least, all the contracting Parties have had the opportunity to represent their interests. The interconnection between different ecosystems has also been safeguarded.¹⁰³

It is also noteworthy (and far from obvious) that the simultaneity of proceedings relating to the BCP under different multilateral treaties has not hindered, but rather strengthened a co-operative approach by promoting joint and complementary actions. Positive co-operation between various institutional systems is evidenced, for instance by the exchange of information on their respective activities;¹⁰⁴ the undertaking of joint fact-finding;¹⁰⁵ and the organization of multilateral consultations, such as the international conference held in Odessa in 2006 involving representatives of States, international institutions and one NGO,¹⁰⁶ and the informal meeting held in Geneva in 2008 by representatives of institutions established under relevant international treaties and MEAs.¹⁰⁷

It should also be highlighted that, contrary to the G/N case, where the International Commission for the Protection of the Danube River (ICPDR) played a limited role, the ICPDR has actively contributed to fostering the dialogue between the Parties directly involved in the Bystroe Canal case and to sharing relevant information with other Parties to the Danube River Protection Convention.¹⁰⁸ An integrated approach has been promoted by the ICPDR, since the BCP has been considered ‘as a basin-wide threat and as a test case for the ICPDR on whether it was able to stand up for the environment and the basin’.¹⁰⁹

With regard to the European Union, which is a party to all the aforementioned treaties,¹¹⁰ except the Ramsar and the World Heritage Conventions, an active engagement was shown, in particular, when the EU promoted bilateral talks with Ukraine (2004–2005) and when it funded a project, consisting of an independent review of Ukraine’s legislation and recommendations to ensure a correct implementation of the Espoo and Aarhus Conventions.¹¹¹

A final remark concerns NGOs, who can be regarded as key players in many respects. The participation of NGOs (or independent individuals with an NGO background within the independent Committees) can significantly strengthen the representation of public interest in the context of NCMs.¹¹² On the one hand, the NGO Environmental People (EPL) filed complaints under the Espoo Convention,¹¹³ the Aarhus Convention,¹¹⁴ the Bonn Convention¹¹⁵ and the Danube River Protection Convention.¹¹⁶ On the other hand, NGOs, including the World Wildlife Fund (WWF) and the Danube Environmental Forum (DEF), actively supported various international monitoring bodies, providing information or technical advice.¹¹⁷

4.3.3 Assessment

As the previous remarks clearly show, the main strength of the Bystroe Canal case is to be found in the continuous monitoring of the situation by competent treaty bodies and their concrete support, as well as in the active involvement of intergovernmental and non-governmental organizations and their mutual co-operation. This was a hard and lengthy process, but, in the end, a significant result was achieved: the reform of Ukraine’s legal system in the field of EIA, providing for the participation of the public in the decision-making process through public hearings, in accordance with Ukraine’s international obligations under the Espoo and the Aarhus Conventions.

The pragmatic and flexible approach characterizing NCMs has also facilitated a dialogue that takes into account both the interests of the Parties directly concerned and the interests of other States. The achievement of this goal has been strengthened through the promotion of inter-institutional co-operation.

A few challenges nonetheless remain. First, one of the major strengths of NCMs that is generally emphasized is their preventive approach, aimed at avoiding the infringement of international environmental obligations and the occurrence of huge or irreversible damage.¹¹⁸ In the present case, it cannot be overlooked that the relevant NCMs were put into motion only after the BCP had already started. Further, monitoring bodies have been apparently more focussed on the consistency of the Ukrainian authorities’ actions with their procedural obligations rather than on the BCP’s conformity with the purposes of the applicable MEAs, which has been considered a ‘delicate issue’.¹¹⁹ As a result, no international proceeding prevented Ukraine from completing its project, which indeed took place before the proceedings had been completed.

Second, the very long time frame that elapsed between the initiation of compliance procedures and the enactment of legal measures by Ukraine cannot go unnoticed. Various reasons may explain the length of the process. It has also been contended, however, that Ukraine contributed to the procrastination of international procedures with a view to advancing its project and confronting the international community with a fait accompli.¹²⁰

Third, reliance on NCMs can have negative effects. For instance, some doubts have been expressed with regard to certain measures adopted by the MOP of the Espoo Convention in the Bystroe Canal case. It is in fact unclear whether the caution issued to Ukraine, consisting of ‘repealing without delay’ its final decision of December 2007 and not implementing Phase II of the project ‘meant cancellation [of the BCP] … or not’.¹²¹ Indeed, ambiguity can be fostered by the political character¹²² and the ‘hybrid’ nature of compliance mechanisms. In fact, NCMs ‘have at their disposal a variety of tools that enable them to better tailor their responses to a specific case’,¹²³ being based on ‘combinations of good will, cooperation, political handling of matters, technical expertise and the prudent recourse to incentives and disincentives which include the possibility of declaring non-compliance’.¹²⁴ In the end, however,

[w]hether the combination of all these elements, legal and not, succeeds in obtaining the result desired has to be assessed on a case-by-case basis. The right combination of good will, political finesse, legal and technical expertise, whatever the provisions to be applied, depends on the political situation of the moment and on the quality of the men and women engaged in the proceedings.¹²⁵

4.4 Concluding Remarks

Both the G/N and the Bystroe Canal cases are particularly complex, as the legal and political issues involved are closely interrelated and inextricably linked. It would also be an overly ambitious task to claim to draw overall conclusions in respect of a hypothetical competition between adjudicative bodies and NCMs from the comparative analysis of only two cases. Accordingly, some general remarks will be tentatively developed strictly on the basis of the findings in the previous sections.

The judgment in the G/N case is rightly considered ‘one of the most interesting judgments ever rendered by the International Court of Justice’,¹²⁶ for ‘the outstanding contribution given by the Court to the clarification of core issues of international law’,¹²⁷ in particular the law of treaties, the law of international responsibility and their mutual relationship. The same judgment also represented a decisive step in the evolution of international environmental law. The formal recognition of the principle of prevention¹²⁸ and the ‘irruption’ of sustainable development in the jurisprudence of the ICJ¹²⁹ are among the most quoted parts of the judgment. The judgment confirmed the outstanding contribution that may be made to the development of international law through the case law of the Court. It should also be acknowledged that the role of the Court is ‘not that of a ground-breaking body but rather that of a stock-taking institution or, to put [it] in [a] somewhat more colorful term, that of being the gate-keeper and guardian of general international law’.¹³⁰

If, however, the same judgment is considered from the perspective of the main function generally ascribed to the Court, the judicial settlement of international disputes, it must be regrettably concluded that this function was not fulfilled. The dispute in the G/N case was decided but not settled by the Court. Obviously, we will never know whether Hungary and Slovakia would have reached an agreement if the Court had provided them with more guidance. However, the ‘condemnation’ of the Parties to negotiation and the absence of supporting indications as to how they might proceed at the legal and technical level contributed to radicalizing the dispute.

More generally, with regard to the integration of the interests of the Parties to the disputes with the interests of other States and of the global environment, the right direction is the one indicated by Judge Weeramantry in his Separate Opinion in the G/N case:

We have entered an era of international law in which international law subserves not only the interests of individual States, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare. In addressing such problems, which transcend the individual rights and obligations of the litigating States, international law will need to look beyond procedural rules fashioned for purely inter partes litigation.¹³¹

It can hardly be said, however, that substantive progress was made in this direction as a result of the ICJ judgment in the G/N case.¹³²

As to the Bystroe Canal case, its main strength lies in the constant promotion of an interactive dialogue and in the effective involvement in the NCMs and in other international monitoring mechanisms of all main stakeholders, including other riparian States, intergovernmental organizations and NGOs. Positive results were also achieved in restoring Ukraine to compliance with some of its international obligations, through substantive reforms within the Ukrainian domestic legal system. In sum, if the issue at hand were considered from the perspective of an abstract competition between international courts and compliance mechanisms, the NCMs would win the game. Innovative mechanisms, like NCPs, appear more effective than traditional tools in managing new causes of conflicts.

A more cautious conclusion might be drawn, however, if attention is focussed on the concrete outcome achieved through the NCMs dealing with the BCP. First, it can hardly be said that legality has been fully restored: Ukraine is still considered to be non-compliant with some of its treaty obligations after decades of discussions and negotiations. Second, and above all, the different approach adopted by the monitoring bodies in assessing Ukraine’s conduct with respect to the implementation of its procedural and substantive obligations may have serious implications for the effectiveness of the entire process.

More generally, if one considers the efficacy of the relevant international procedures in the G/N and the Bystroe Canal cases from the perspective of the protection of the environment as a common concern, there are no real winners but certainly one loser: the ecosystems directly or indirectly affected by the two projects and, notably, the Danube River basin’s and the Danube Delta’s ecosystems.

Against this backdrop, the obvious conclusion that could be drawn would be that very little can be done, within the limits of a decentralized legal order, whatever procedure is adopted to settle an international environmental dispute. The international legal system seems in fact structurally unsuited to cope with the equitable management of shared natural resources, where two fundamental principles, with formal equal rank – territorial sovereignty and sovereign equality – inevitably are in tension or even collide.¹³³ It should also be added that the international legal order lacks effective tools against the lack of political will, the persistent unwillingness of States or their dubious, if not bad faith.¹³⁴ In the end, it cannot be overlooked that international courts and non-compliance bodies dealing with environmental disputes are required to interpret very vague rules and principles, with serious implications both for international courts and NCMs. The former are composed of legal experts, impartial and independent, but they are obviously reluctant to play a law-making role.¹³⁵ The latter are extremely flexible and pragmatic, but their political nature tends to prevail over a legal approach.¹³⁶

Nevertheless, a more optimistic outlook can also be suggested. As much of the academic literature has rightly emphasized, both adjudicative bodies and treaty-based institutions are imperfect, but can play a complementary role in the settlement of international environmental disputes and in restoring legality.¹³⁷ It should also be added that their contribution can be remarkable, provided that international environmental disputes are understood in correct terms, that is, not because of the ‘environmental’ character of the legal rules at issue, but because they relate to the alleged detrimental impact of certain human activities on natural environmental systems.¹³⁸ To this end, some essential conditions will have to be met: all available means under international environmental law must be effectively used; the representation or participation of all key actors in the process must be assured; all possible alternative solutions must be carefully considered with the assistance of independent experts in the evaluation of scientific evidence; and, above all, the public interest in the conservation of the environment as a common concern must be duly taken into account through a genuinely integrated approach.