Marko Berglund 1 and Wanhua Yang 2
2 Overview of compliance mechanisms of MEAs
2.1 Introduction
MEAs have emerged as one of the favoured means, in the environmental arena, for promoting international cooperation requiring both international and national ac-tion to protect both human health and the environment.7 MEAs establish standards, policies and guidelines for the stewardship of the global environment. With the proliferation of MEAs, however, there has been a growing ‘implementation gap’
where institutional, legislative and policy measures, and the capacity to implement a large number of MEAs, as well as compliance processes, substantially lag behind the development and ratification of MEAs. Recently, the focus on MEAs has shifted
6 A treaty might, unusually, contain self-executing provisions; or a state with a monist approach to the inclu-sion of international law might not require separate national measures to implement it.
7 UNEP Division of Environmental Law and Conventions, ‘The Environmental Dimension of IFSD:
Fragmentation of Environmental Pillar and its Impact of Efficiency and Effectiveness’ Issues Brief #2 (2011), available at <http://www.unep.org/environmentalgovernance/Portals/8/InstitutionalFramework-forSustainabledevPAPER2.pdf> (visited 12 June 2012) at 3.
37 Marko Berglund and Wanhua Yang from negotiating new treaties to promoting compliance with existing environmental conventions.8 Insufficient and weak implementation of internationally agreed envi-ronmental goals, including those set out in MEAs, was one of the major concerns in the preparation process for the United Nations Conference on Sustainable Develop-ment (Rio+20) held on 20–22 June 2012 in Rio de Janeiro.9
To begin the discussion, it is important to distinguish a few key terms. ‘Compliance’
is taken to mean ‘the fulfilment by the contracting parties of their obligations under a MEA and any amendments to the MEA’;10 and ‘implementation’ to refer to ‘all relevant laws, regulations, policies and other measures and initiatives that contracting Parties take or adopt to meet their obligation under a MEA and its amendments’.11 Thus, compliance and implementation are related, but distinct. Compliance meas-ures are essential to implementation processes.12
The common mechanisms for compliance with MEAs can be grouped into four categories: (a) reporting and performance review; (b) multilateral non-compliance procedures; (c) non-compliance response measures; and (d) dispute resolution.13 2.2 Reporting and performance review
Most MEAs require their Parties to report on the measures they have taken to imple-ment a particular MEA, usually by submitting annual reports on their relevant laws or policies. Some MEAs provide for the Secretariat, or a third party, to monitor or verify the performance and require the Parties to cooperate with such monitoring or
8 UNEP, Training Manual, supra note 4; and UNEP and IUCN, Course on Compliance with and Enforce-ment of MEAs: Lecturer’s Manual, Unit 1, available at <http://www.iucnael.org/en/home/latest-news/176/153-compliance-and-enforcement-of-multilateral-environmental-agreements.html> (visited 12 June 2012) at 15. It should be noted, however, that new MEAs are still being negotiated. For example, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya, 29 October 2010, <http://www.cbd.int/abs/>) was adopted in 2011. In 2009 UNEP’s Governing Council requested UNEP’s Executive Director to convene an intergovernmental negotiating committee with the mandate to prepare a global legally binding instrument on mercury by 2013. In Durban in December 2011 a process under the UNFCCC was launched to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties to be completed no later than 2015, in order for it to come into effect and be implemented from 2020.
9 Chapter I, para. 12 of The Future We Want, Rio+20 outcome document (available at <http://www.unc-sd2012.org/content/documents/727The%20Future%20We%20Want%2019%20June%201230pm.
pdf> (visited 2 November 2012)), stresses the need for assessing the gaps in the implementation of inter-nationally agreed commitments. Also see UNEP DELC IFSD Issues Brief #3 – Country Responsiveness:
Implementation of Capacity Support for the Environmental Pillar of IFSD, stating that the implementa-tion of MEAs has been less successful than their acceptance and ratificaimplementa-tion, at 1, para. 2, available at:
<http://www.unep.org/environmentalgovernance/Portals/8/InstitutionalFrameworkforSustainabledevPA-PER3.pdf> (visited 1 October 2012).
10 ‘Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements’, UNEP Governing Council Decision SS.VII/4. (2002), at 2, para. 9(a).
11 Ibid. at 2, para. 9(b).
12 UNEP and IUCN, Course on Compliance, supra note 8, at Unit 4, Slide 3.
13 UNEP, Comparative Analysis of Compliance Mechanisms under Selected Multilateral Environmental Agree-ments (UNEP, 2005), 24.
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Compliance with Biodiversity-related Multilateral Environmental Agreements and Potential for Synergies
verification of their performance. Thus, reporting and performance review is neces-sary to determine a Party’s compliance situation.14
2.3 Non-compliance procedures
Most MEAs establish a formal, multilateral procedure to deal with non-compliance (non-compliance procedures) in the form of an elected committee, often called the
‘Implementation Committee’ or the ‘Compliance Committee’. Non-compliance procedures differ from traditional dispute resolution and aim to identify Parties’
compliance difficulties and to facilitate better compliance in a non-adversarial man-ner. A Party’s alleged non-compliance may be referred for consideration to the Com-mittee, which can make a recommendation on the matter to the Conference of the Parties of the MEA in question, as the COP is the supreme decision-making body of a specific MEA. Usually the final output is a decision by the COP.15
2.4 Non-compliance response measures
Once a case of non-compliance is identified under an MEA’s non-compliance pro-cedure, response measures tailored to the particular circumstances are needed to address the alleged compliance at the multilateral level. Given that cases of non-compliance are usually due to lack of human, material and financial resources and/
or, in some cases, lack of political will, both incentives and disincentives have been developed as response measures to address the issues.
Incentives are most often used as response measures, and include enhanced interna-tional cooperation with the non-compliant Party in support of its implementation.
These measures can include the provision of financial and/or technical assistance.
Financial assistance often comes in the form of a Trust Fund or a financial mechanism from which the Parties provide funding for relevant projects. Technical assistance may include: (a) capacity-building in the form of training and workshops to address issues of lack of human resources and know-how; and (b) technology transfers and exchange of information to address issues of lack of materials. However, this non-compliance assistance may be conditional so that, for instance, a requirement for the Party to adopt a national program of implementation actions which aim to address the situation of non-compliance must be put into place.16
Disincentives are measures that may be imposed on non-compliant Parties. These can include a COP decision to impose additional stringent and specific performance review information obligations (additional to the regular performance review infor-mation) subject to verification; to recommend conditional assistance measures; as well as to impose liabilities and/or the suspension of a Party’s rights under the
con-14 Ibid.
15 Ibid. at 26.
16 Ibid. at 26–27.
39 Marko Berglund and Wanhua Yang vention.17 In MEAs which regulate trade, for example, the suspension of rights, viz.
the right to trade, can have far-reaching economic impacts.
Table 1 below lists an overview of the compliance mechanisms of nine biodiversity-related MEAs.
Table 1: Overview of MEA Compliance Frameworks18
Convention National
18 Modified from UNEP, Comparative Analysis, supra note 13, at, 104.
19 Convention on Wetlands of International Importance, Ramsar, 2 February 1971, in force 21 December 1975, 11 International Legal Materials (1972), 963, <http://www.ramsar.org>.
20 Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972, in force 17 December 1975, 11 International Legal Materials (1972) 1358, <http://whc.unesco.
org>.
21 Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington DC, 3 March 1973, in force 1 July 1975, 993 United Nations Treaty Series 243, <http://www.cites.org>.
22 Convention on the Conservation of Migratory Species of Wild Animals, Bonn, 23 June 1979, in force 1 November 1983, 19 International Legal Materials (1980) 15, <http://www.cms.int>.
23 Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, in force 29 December 1993, 31 Inter-national Legal Materials (1992) 822, <http://www.biodiv.org>.
24 UN Convention to Combat Desertification in Countries Experiencing Serious Drought and or Deserti-fication, Particularly in Africa, Paris, 17 June 1994, in force 26 December 1996, 33 International Legal Materials (1994) 1309, <http://www.unccd.int>.
25 Cartagena Protocol on Biosafety, Montreal, 29 January 2000, in force 11 September 2003, 39 Interna-tional Legal Materials (2000) 1027.
26 International Treaty on Plant Genetic Resources for Food and Agriculture, Rome, 3 November 2001, into force 29 June 2004, <http://www.planttreaty.org/>.
27 Section V of the ITPGRFA Procedures and Operational Mechanisms to Promote Compliance and Address Issues of Non-compliance provides that the Committee shall develop a reporting format.
28 Under Art. 29 of the Nagoya Protocol Parties shall report to the COP/MOP on measures taken to imple-ment the Protocol. The reporting format and timetable will be decided by the COP/MOP.
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Compliance with Biodiversity-related Multilateral Environmental Agreements and Potential for Synergies