Overview

• Understanding compliance

• Compliance in the new 2015 agreement

– Mitigation

– Other areas

• Some draft options

What is compliance?

Compliance means that the actual behaviour conforms with the prescribed behaviour. When the actual behaviour departs significantly from prescribed behaviour it is non-compliance.

Compliance is distinct from:• Enforcement - means ensuring compliance with the

expected behaviour and ‘combating’ violations to the agreed rules.

• Implementation - refers to laws, policies, and other measures that parties take to meet their obligations under an international treaty.

• Measurement/Monitor, Reporting and Verification (MRV) – describes a series of processes to quantify, communicate and review actions and/or their impacts (e.g. emission reductions).

• Dispute settlement – allows parties to resolve specific disagreements that arise under an international treaty.

• Accountability, transparency, effectiveness etc.

The Connection

Levels of compliance

• Compliance with the primary rules contained in the international treaty (e.g. UNFCCC, Kyoto Protocol) = first order compliance.

• Compliance with the decisions of a treaty or judicial body (COP, Compliance Committee) regarding the further application of primary rules (= second order compliance).

Type of compliance

• Substantive: employing specific measures or meeting goals committed to in a treaty; and

• Procedural: applying the procedures established by the treaty, such as, reporting on the status of national implementation.

Compliance with MEAs

Compliance with Multilateral Environmental agreements (MEA) generally through:•national plans, strategies, policies for implementing international commitments•the establishment of laws, licensing systems, institutions and other domestic measures •reporting, monitoring and verification of how the requirements of the MEA have been met – which measures have been taken•a significant element in MRV activities is that it allows governments, civil society and other stakeholders to assess accomplishments and necessary next steps

Why comply?

• Meet common needs and goals that can only be achieved internationally

• In the national interest: security, profit, access to funding

• Pressure by other states, media and civil society (reputation)

• Need for legal certainty in international relations (reciprocity)

• Believe in ideas and values of an international society

Lessons learnt

• Governments are more likely to comply with norms that – create clear expectations for behaviour, are specific,

durable and coherent, – are considered obligatory,– include MRV

• Concern for reputation and international relations create incentives for compliance

• Power matters and large countries get away with non-compliance

• Willingness to comply determines how the treaty is written

Compliance in 2015 agreement

• Options depend on scope and nature of the agreement and parties’ (mitigation) obligations:– E.g. a protocol that establishes substantive binding obligations

on parties (e.g. to reduce GHG emission by X) could encompass a compliance mechanism.

– If the legal obligation is of a procedural nature (e.g. to submit an INDC, update and/or report) its mandate, functions and possible response measures would be limited.

– If the 2015 agreement confirms the voluntary nature of contributions, and/or

– If such contributions are formally ‘housed’ outside the new agreement (e.g. compiled in an INF document) a compliance review would be almost meaningless.

Compliance mechanism

• promote and facilitate compliance with treaty obligations through provision of assistance to parties and addressing cases of non-compliance (objective)

• co-operative, facilitative, transparent, non-confrontational and non-judicial, encouraging compliance through trust and support

• integrating/overlapping with components of MRV, dispute settlement procedures (adversarial and possibly bilateral) and enforcement

Non-compliance response

• Appropriate assistance, including assistance for the collection and reporting of data, technical assistance, technology transfer and financial assistance, information transfer and capacity building.

• Issuing warnings.• Suspension, in accordance with the applicable rules of

international law concerning the suspension of the operation of a treaty, of specific rights and privileges under the Protocol, whether or not subject to time limits, including those concerned with emission trading, transfer of technology, financial and new market mechanism.

Geneva text

• Provision of information on domestic implementation• Transparency including existing MRV provisions• Analysis and consultations re parties’ action and

achievements• Governing body of new agreement to elaborate rules on

compliance• Application of Kyoto compliance system (to Annex I

parties)• Establishment of compliance system (committee etc.

modelled on KP compliance system)

Mitigation

• Kyoto Protocol compliance mechanism to facilitate, promote and enforce compliance – consequences shall provide for an incentive to comply.

• The Enforcement Branch can declare non-compliance and require party that exceeds assigned amount to maker up difference in 2nd commitment period and plus additional deduction of 30%.

Possible provision?

“…the provisions of the Kyoto Protocol and subsequent decisions by the Meeting of the Parties on, inter alia, international expert review processes and the compliance system shall continue to apply mutatis mutandis with regard to mitigation efforts by all Parties; the Parties shall, at their first meeting, review the adequacy of those arrangements and amend previous decisions as necessary…”

Some issues:

• Different compliance regimes for Annex I and developing country parties in line with CBDRRC

• Consequences under Kyoto Compliance Mechanism are not binding (pending an amendment to the Kyoto Protocol, Art.13 KP, last sentence)

• Punitive element (30% penalty) politically achievable?

Compliance outside mitigation?

• Naming and shaming (on finance): e.g. Green Climate Fund may annually publish a list of contributions received by developed country parties, while another list of financial contributions due could be issued by the Secretariat

• In case of non-compliance: Lose right to vote, trade, other forms of participation

• No withdrawal from the new instrument unless withdrawal under Art.25 UNFCCC (from Convention)

Possible provision?

• Art.8 Montreal Protocol: Parties shall consider and approve procedures and institutional mechanisms for determining non-compliance and for the treatment of Parties found to be in non-compliance

• Art.13 Kyoto Protocol: Parties shall approve appropriate and effective procedures and mechanisms to determine cases of non-compliance…

Fall back?

• Art.13 UNFCCC: establishment of multilateral consultative process for the resolution of question regarding the implementation of the Convention but terms of reference (contained in decision 10/CP.4) were not adopted

• Art.14: dispute settlement through – without acceptance of compulsory jurisdiction – a conciliation commission to make a recommendation