In light of the decision taken in Paris, what would be the core elements (e.g., triggers, consequences) of the most robust mechanism possible under Art 15 of the Paris Agreement?
Under international treaty law, the primary dispute resolution / compliance tool is ordinarily an ability for a party to a treaty to refer another party to the treaty to the international court of justice or another named international arbitral body for the adjudication of whether the party is in breach of its treaty obligations. It is rare for this to happen in the international environmental law space as very few environmental treaties impose hard obligations on parties. Instead, obligations apply generally and are often couched in non-mandatory language. The primary exceptions to this are the Montreal Protocol on Ozone Depleting Substances which establishes an Implementation Committee and the Kyoto Protocol which establishes a Compliance Committee.
The functions of the Implementation Committee are to receive, consider and report on any submission by Parties related to non-compliance with the Montreal Protocol, to receive, consider and report on any information or observations forwarded by the Secretariat in connection with the preparation of the reports on production and consumption of ozone-depleting substances and on any other information received and forwarded by the Secretariat concerning compliance with the provisions of the Protocol.
The Implementation Committee can also request, where it considers necessary, through the Secretariat, further information on matters under its consideration; it can undertake, upon the invitation of the Party concerned, information-gathering in the territory of that Party for fulfilling its functions. The Committee is also mandated to maintain, in particular for the purposes of drawing up its recommendations, an exchange of information with the Executive Committee of the Multilateral Fund related to the provision of financial and technical cooperation, including the transfer of technologies to Parties operating under Article 5, paragraph 1, of the Protocol.
In considering the submissions, information and observations it receives, the Implementation Committee is guided by the desire to secure an amicable solution of any non-compliance matter on the basis of respect for the provisions of the Montreal Protocol.
The Implementation Committee reports its recommendations to the Meeting of the Parties on matters it considers appropriate. After receiving a report by the Committee, the Parties may, taking into consideration the circumstances of the non-compliance matter, decide upon and call for steps to bring about full compliance with the Protocol, including measures to assist the Parties’ compliance with the Protocol, and to further the Protocol’s objectives.
The compliance system under the Kyoto Protocol consists of a Compliance Committee with both an enforcement branch and a facilitative branch. The role of the Compliance Committee is to review the various inventory reports submitted by Annex B Parties. Where a report indicates a question of implementation, the Bureau will determine whether the issue is one that warrants consideration by the enforcement branch or the facilitative branch. Parties can themselves raise questions of implementation or can refer other Parties to the Compliance Committee.
The mandate of the facilitative branch is to provide advice and facilitation to Parties in implementing the Protocol, and to promote compliance by Parties with their Kyoto commitments. It is responsible for addressing questions of implementation by Annex I Parties of response measures aimed at mitigating climate change in a way that minimizes their adverse impacts on developing countries and the use by Annex I Parties of the mechanisms as “supplemental” to domestic action. Furthermore, the facilitative branch may provide “early warning” of potential non-compliance with emissions targets, methodological and reporting commitments relating to greenhouse gas inventories, and commitments on reporting supplementary information in a Party’s annual inventory. The facilitative branch only has power to make recommendations as to how to achieve future compliance, it does not have broader powers related to the imposition of sanctions.
The enforcement branch is responsible for determining whether a Party included in Annex I (Annex I Party) is not in compliance with its emissions targets, the methodological and reporting requirements for greenhouse gas inventories, and the eligibility requirements under the mechanisms. In case of disagreements between a Party and an expert review team, the enforcement branch shall determine whether to apply adjustments to greenhouse gas inventories or to correct the compilation and accounting database for the accounting of assigned amounts. The enforcement branch has the power to suspend a Party’s eligibility to participate in the flexible mechanisms under the Kyoto Protocol, to make adjustments to inventories or corrections to assigned amount units. This effectively imposes sanctions on Parties for non-compliance.
(See summary at http://unfccc.int/kyoto_protocol/compliance/items/3024.php )
Whilst a number of developing countries advocated for the inclusion of a compliance mechanism that mirrored the Kyoto Protocol Compliance Committee, the Paris Agreement does not contemplate a compliance mechanism with an enforcement branch. Instead, the object of a future compliance system is expressly stated to be non-punitive, to facilitate implementation and promote compliance.
Features of a compliance system
Notwithstanding the limitations in Article 15, it is still possible to design a compliance system that will be able to play a meaningful role in facilitating NDC implementation.
The role of the compliance committee will be guided by the language in Article 15. That is (a) to facilitate implementation and (b) to promote compliance.
In respect of (a), a number of the features of the facilitative branch of the Kyoto Protocol and the Implementation Committee of the Montreal Protocol (described above) will be relevant. That is, to review reports, gather and exchange information and to make recommendations.
In respect of (b), the promotion of compliance is something that arguably falls short of actually being able to ensure or enforce compliance through sanctions. Instead, it is more likely to be seen as a means of educating Parties about their obligations. Whilst something stronger could be advocated for, the express exclusion of punitive measures means that this will be unlikely to gain traction amongst all Parties.
There are only a limited number of Articles that place express obligations on Parties in their individual capacity, and even fewer that specifically reference developed country parties. Those obligations are almost all expressed as procedural obligations, related to the submission of reports, inventories etc. In our view, the triggers for review by a compliance committee would need to be linked to those individual obligations. Whilst it is technically possible to empower a compliance committee to review a broader range of obligations under the Paris Agreement, such as those obligations applying to developed country Parties collectively or to all Parties, it is difficult to see how a compliance body could do anything more than make findings about non-compliance, as it is really the COP which should be taking up action to address collective outcomes. This notwithstanding, I note that the Montreal Protocol’s Implementation Committee is able to make findings in relation to the performance of the Multilateral Fund – which could provide a parallel to track obligations of developed country Parties to provide finance and technical support to developing countries.
On that basis, we would think that the primary triggers for review by the compliance committee would include Articles 4.2, 4.3, 4.8, 4.13, 7.9, 11.4 and 13.7. However, other obligations applicable to developed country Parties plural could also be considered.
Given that the mechanism is intended to be non-punitive, the consequences of non-compliance are more likely to require positive steps to assist non-complying countries meet their obligations. The committee could, on assessing the reports provided, provide recommendations of steps to be taken to bring the country back into compliance. It could also facilitate the provision of expert assistance if lack of technical capacity results in the inability to comply (e.g. with accounting standards). Beyond this, it is difficult to argue for sanctions such as restrictions on participating in market mechanisms etc as they would be considered punitive.