Monitoring Compliance and Enforcement

It has been frequently emphasized that the effectiveness of international environmental law depends on establishing international procedures or mechanisms that may be used to ensure compliance.3, International environmental law has developed several such mechanisms, one of them being the obligation of states parties to regularly report the national measures undertaken to pursuent to the respective international agreement. However, international environmental law does not entrust particular international institutions with supervisory functions. A tendency seems to be developing that the institutions established by the various international environmental agreements are entrusted with the task of assessing whether the status of the environment is improving rather than whether individual states are complying with their commitments. The international regime on climate change is an example of this tendency.

In the Kyoto Protocol, the reporting system has become most sophisticated. The Framework Convention has already established two basic reporting requirements, namely, for national inventories and accounts of greenhouse gas emission budgets and for periodic national communications that provide detailed information on all the states parties' implementation of the Convention. The Kyoto Protocol has expanded these reporting requirements, which are the logical consequence of the Protocol, providing additional mechanisms of implementation. According to Article 7, Paragraph 1 of the Kyoto Protocol, each state party, as a part of its annual inventory, has to provide the information necessary to ensure its compliance with all of its obligations under the Protocol. The Secretariat is responsible for collecting, compiling, and publishing national greenhouse gas inventory data. To make the assessment of such data easier, the Framework Convention obliges states parties to use standard methodologies to measure and estimate national greenhouse gas emissions. The Protocol has further refined this requirement.38 To induce a common technique, the Kyoto Protocol requires that inventories of states parties that fail to use the prescribed method must be adjusted to account for uncertainties. The reporting requirements may be further elaborated by guidelines issued by the Conference of Parties.39

The Conference of states parties of the Framework Convention has already established a process for the review of information by Annex I states parties.40 The Kyoto Protocol has built thereupon and strengthened this process. Whereas under the Framework Convention the inventory information, though collected annually, was published and reviewed only in conjunction with the periodic

37 See, for example, Robert O. Keohane/Peter M. Haas/Mare A. Levy, The Effectiveness of International Environmental Institutions, Haas/Keohane/Levy, Eds., "Institutions for the Earth, 1994." 3-7 with further references.

38Article 5, paragraphs 1 and 2.

"Article 7, paragraph 4 of the Kyoto Protocol.

4UFCCC Conference of the Parties, 1st Session, UN Doc. FCCC/CP/1995/7/Add.l, Decison 3/CP.l, (6 June 1995).

national communications, Article 8, Paragraph 1 of the Kyoto Protocol now requires an annual review of national inventory and emissions-target information as part of the centralized accounting of assigned amounts. The information submitted in the states' reports will be reviewed by expert teams.41 The teams of experts will be nominated by the states parties to the Framework Convention, appropriately assisted by intergovernmental organizations, and coordinated by the Secretariat. This review process is meant to " . . . provide a thorough and comprehensive technical assessment of all aspects of the implementation of the commitments of the Party and identifying any potential problems in, and factors influencing, the fulfilment of commitments."42 The Secretariat will forward any problem identified in the expert teams' reports for consideration by the Meeting of Parties. The Meeting of Parties is authorized to decide on any matter required for the implementation of the Protocol.43 The system will be elaborated further through guidelines of the Meeting of Parties.

The reporting system has transformed from an information-collecting device, as it was under earlier treaties concerning the protection of the environment, monitoring system under the Kyoto Protocol. The latter aspect has been clearly emphasized in Article 7, Paragraphs 1 and 2 of the Kyoto Protocol. However, whether or not the rules governing review of the information thus received are commensurate therewith is questionable. The wording of Article 8, Paragraph 6 of the Kyoto Protocol, according to which the Meeting of Parties may take "... decisions on any matter required for the implementation of the Protocol ..." is quite ambivalent. It may refer to the implementation of the Protocol as such or to the implementation problems of one particular state party. The practice under the Framework Convention and, in particular, the context of this paragraph suggests that it refers like the other paragraphs of this provision to the individual performance of states parties.

It may seem that the noncompliance procedure under the climate change regime is less stringent than those in other recent international environmental agreements. Although Article 13 of the Framework Convention calls for the consideration of a multilateral consultative process for questions regarding implementation and Article 10 of the Framework Convention establishes a Subsidiary Body for Implementation, the functions of the latter are limited. The Subsidiary Body is called upon to " . . . assist the Conference of Parties in the assessment review of the Convention . . . " and thus lacks the competence to deal with individual cases. Equally, the mandate of the Conference of Parties to establish a noncompliance system is limited. The parties are only called upon to "... consider the establishment of a multilateral consultative process, available to Parties on their request for the resolution of questions regarding the implementation of the Convention ..." This mandate lacks the focus on the noncompliance of individual states parties which is characteristic of the Montreal Protocol and the Second Sulphur Protocol.

41 Articlc 8, Paragraph 1 of the Kyoto Protocol.

4-Article 8, Paragraph 3 of the Kyoto Protocol.

Article 8, Paragraph 6 of the Kyoto Protocol.

The reason for the rather weak position of the Subsidiary Body for Implementation in comparison to the procedures adopted under the regimes for the protection of the ozone layer and on trans-boundary air pollution can be found in the fact that the climate change regime has set up a rigorous reporting system including the possibility of having the respective information assessed by experts (see above). Under these circumstances, vesting the Implementation Body with the power to scrutinize the implementation of each single state would have meant a duplication of functions. Apart from that, assessing the information on emissions and removals through sinks requires expertise which will not be found in a body consisting of representatives of states.

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