1. Are there examples from existing Multilateral Environmental Agreements (“MEAs”) that have similar implementation/compliance mechanisms/committees as Article 15 of the Paris Agreement and could serve as models for how to address systemic issues of implementation or compliance?

Could you briefly describe how systemic issues were addressed in each example of a mechanism/committee:

2. What kind of systemic issues are addressed by the committee/mechanism (e.g. collective failure in implementation, the performance of a certain body in the treaty)?

3. What are the triggers to initiate the mechanism/committee’s analysis of the systemic issue?

4. What are the outputs of the committee/mechanism with regards to those systemic issues (e.g. technical report, recommendation to the COP)?

Summary:

Article 15 of the Paris Agreement establishes a committee, the mandate of which is to (a) facilitate implementation of, and (b) promote compliance with, the provisions of the Agreement.

We have identified other Multilateral Environmental Agreements (“MEAs”) with similar implementation and compliance mechanisms or committees, and assessed how they address “systemic issues” of implementation and compliance.  We interpret “systemic issues” to mean recurrent issues of implementation and compliance, or barriers to implementation and compliance that could hinder implementation of the agreement as a whole.

The obligations on the Parties to the Paris Agreement are almost all expressed as procedural obligations, related to the submission of reports, inventories, etc.[1]  For that reason, our research has focused on the way that compliance committees and mechanisms (collectively, “committees”) under various other MEAs address systemic issues of implementation and compliance specifically with respect to national reporting obligations.[2]

We have identified and assessed comparable compliance committees used in 9 different MEAs, summarized below.  Many of the MEAs have committees that look at both specific and general compliance and implementation issues.  General compliance and implementation issues generally include “systemic issues,” as defined above.  For those general issues, the committees tend to offer guidance, recommendations, or advisory opinions.  For issues relating to a specific Party’s compliance, the committees sometimes recommend that resources be provided to Parties to help address their compliance issues.  By addressing issues relating to a specific Party, committees can also in effect deal with systemic issues as solving a specific Party’s issue is likely to impact other Parties or the agreement generally.

The remainder of this memorandum responds to the specific questions above, namely (1) what are examples of MEAs with compliance committees similar to that established by Article 15; (2) what kinds of systemic issues are addressed by the committees; (3) what are the triggers to initiate the mechanisms for analysing the systemic issues; and (4) what are the outcomes.

1. Examples of MEAs with implementation and compliance committees similar to that established by Article 15 of the Paris Agreement

The following MEAs have established compliance committees comparable to that established in Article 15 of the Paris Agreement:

• Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (“Basel Convention”)
• The Cartagena Protocol on Biosafety to the Convention on Biological Diversity (“Cartagena Protocol”)
• Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”)
• The Convention on Environmental Impact Assessment in a Transboundary Context and its Protocol on Strategic Environmental Impact Assessment in a Transboundary Context (“ESPOO”)
• The International Treaty on Plant Genetic Resources for Food and Agriculture (“ITPGRFA”)
• The Kyoto Protocol to the United Nations Framework Convention on Climate Change (“Kyoto Protocol”)
• The 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, 1972 (“London Protocol”)
• The Montreal Protocol on Substances that Deplete the Ozone Layer (“Montreal Protocol”)
• International Convention for the Regulation of Whaling (“ICRW”)

More information on the committees and mechanisms for each of the above MEAs can be found in the tables set out as Annex II of the Report of the tenth meeting of the Implementation and Compliance Committee of the Basel Convention – see [2].

2. Kinds of systemic issues addressed by the committees

As noted above, each of the MEAs addressed herein requires some form of national reporting.  Most of the mechanisms address both specific and general compliance issues.  With respect to general compliance issues, or systemic issues, several of the committees are empowered to address issues relating to the format for national reporting obligations, the monitoring and assessment of reporting obligations, and facilitating reporting.  Some of the committees accept and respond to questions relating to reporting obligations (see, e.g., ITPGRFA), and others have a mandate to identify early potential non-compliance and reasons for noncompliance (see, e.g., Kyoto Protocol).

3. Triggers to initiate the mechanisms for analysing the systemic issue

The following are examples of common triggers under the MEAs for the relevant committee to begin to analyse a systemic issue:

• A decision of the governing body (e.g., the Committee of the Parties) (see, e.g., Basel Convention)
• Submissions from Parties, including submissions about themselves or other Parties
• Submissions by the relevant Secretariat, including questions about implementation provided by expert review teams (see, e.g., Kyoto Protocol, London Protocol)
• Failure of a Party to submit a required national report (see, e.g., Cartagena Protocol)
• Discovery of information in certain reports showing difficulties faced by a Party to fulfil its obligations (see, e.g., Cartagena Protocol)
• The initiative of the relevant committee, based on information received from other sources (including NGOs) and as a result of specific compliance issues (see, e.g., ESPOO)
• The initiative of the relevant committee following consideration of reports received (see, e.g., ITPGRFA)
• Following statements or questions made by a Party concerning the implementation of its own obligations (see, e.g., ITPGRFA)

4. Outcomes and outputs of committees

In cases of general non-compliance, or systemic issues, outcomes primarily include conclusions and/or recommendations to the main governing body, including on systemic compliance issues (see, e.g., London Protocol, Basel Convention, Cartagena, ESPOO, ICRW).  As an example of a specific response to a systemic issue, the ESPOO implementation committee took steps to develop and revise the relevant questionnaires that formed the basis of the necessary reports.

With respect to individual cases of non-compliance (addressing which can also assist in identifying and/or addressing systemic issues, as noted above), relevant outcomes include:

• Submissions, in the form of non-binding recommendations and information to the Party concerned (see, e.g., Basel Convention)
• Recommendations to the governing body, including recommendations for further support to the Party concerned (see, e.g., Basel Convention, Cartagena Protocol, ESPOO, ITPGRFA)
• Providing advice or assistance regarding future compliance (see, e.g., Basel; Cartagena, CITES, ITPGRFA, Kyoto Protocol, London Protocol, Montreal Protocol)
• Inviting the Party concerned to submit progress reports on progress it is making to comply / or a compliance action plan (see, e.g., Cartagena Protocol, CITES, Kyoto Protocol)
• Providing financial or technical assistance, etc. (see, e.g., Cartagena Protocol, CITES, Kyoto Protocol)

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[1] See Articles 4.2, 4.3, 4.8, 4.13, 7.9, 11.4, and 13.7.

[2] The majority of the information in this memorandum was taken from a report by the Committee for Administering the Mechanism for Promoting the Implementation and Compliance of the Basel Convention, Tenth Meeting, UNEP/CHW/CC.10/7 (22 October 203), available here: http://www.basel.int/Default.aspx?tabid=3396