Implications of the use of Committee vs Mechanism in drafting compliance sections

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Print Friendly, PDF & Email

Date produced: 08/12/2015

What are the legal implications of using the term “committee” or “mechanism” for the compliance section of the Paris Agreement?  Is one term necessarily broader than the other?

Summary:

The answers to these questions are based on the review of several international environmental agreements and other related instruments. We also reviewed: (1) the chapter on “Compliance and Settlement” published by the University of Houston Law Center;[1] and (2) the article written by Xueman Wang and Glen Wiser on “The Implementation and Compliance Regimes under the Climate Change Convention and its Kyoto Protocol.”[2]

According to the authorities reviewed, the terms “committee” and “mechanism” are frequently used in the compliance sections of international environmental agreements, their complementary amendments, and protocols. As detailed below, each term has its own distinct meaning.

The term “compliance mechanism” is used in two ways. First, this term is a general designation of all compliance strategies available to enforce international environmental agreements, including litigation tools, penalties, periodic reports reviews, capacity building, and education. Second, the term also designates the group of procedural rules that govern the entire compliance process. Under this second meaning, the compliance mechanism is therefore the set of rules under which the different compliance strategies are applied and includes provisions governing the composition, functions, and periodic meetings of the body that will be in charge of enforcing the convention.

On the other hand, “compliance committee” is a term generally used to designate the body that is in charge of periodic reviews. Periodic reviews serve as a compliance mechanism through which the contracting parties submit performance reports on their implementation of the treaty at issue, after which the compliance committee, usually consisting of a group of experts, verifies the accuracy of those self-reports. Based on those assessments as well, in some cases, on independent verifications, the compliance committee later presents a set of recommendations to assist parties in strengthening their compliance with the treaty’s terms.  In general, the recommendations of the compliance committee serve an advisory rather than compulsory function and are not considered binding decisions on the parties.

Taking into account the meanings of these two terms within the international law context, it can be said that in the context of environmental treaty compliance, the term “mechanism” is broader since it comprises all available means to enforce the agreement and the procedural rules to enforce it, which usually include the rules about the functions and working dynamics of the “compliance committee.”

Advice:

When drafting the section on compliance, it is important to take into account the different meanings of terms “mechanism” and “committee.” If the querying state wants to provide a title to the compliance section that encompasses the full range of compliance activities, we recommend “Compliance Mechanism” because its breadth allows it to apply to all provisions governing compliance.  In the alternative, if the querying state would prefer to limit the scope of activities covered by the provision, “Compliance Committee” should limit that authority to those activities expressly assigned to that body.

 

 

[1] The University of Houston Law Center, Houston, Texas, Compliance and Dispute Settlement, Chapter 8, p. 305-306. Available at http://www.law.uh.edu/faculty/thester/courses/Climate-Change-2015/Compliance%20%20Dispute%20Settlement.pdf, last visited on December 8, 2015.

[2] Wang Xueman and Wiser Glen, The Implementation and Compliance Regimes under the Climate Change Convention and its Kyoto Protocol, 11(2) Review of European, Comparative, and International Environmental Law, p. 181-198, available at http://www.ciel.org/Publications/Wang_Wiser.pdf, last visited on December 8, 2015.