Ce document présente les conclusions d'une recherche collective pluridisciplinaire menée durant deux ans au sein du Ceric auquel l'Iddri a participé. Il présente une analyse de la procédure de l'observance, sous l'angle principalement juridique, mais enrichi par un éclairage de l'économie et de la science politique.
Les résultats détaillés de ce projet ont été présentées lors de l'atelier "L'effectivité du Protocole de Kyoto sur les gaz à effet de serre", organisé par le Ceric en collaboration avec l'Iddri et la chaire Développement durable de Sciences Po, avec le concours de l'Ademe. Ces résultats ont également fait l'objet d'un ouvrage "Changements climatiques, les enjeux du contrôle international" publié par la Documentation française.
Article :
Ranking among the basic challeng- es for the implementation of in- ternational environmental law in general and the Kyoto Protocol in particular are the monitoring of compliance by signatory parties and sanctions in case of non-compliance. Contrary to other international environmental protection con- ventions, the Kyoto Protocol is based on eco- nomic tools governed by the “invisible hand” of the market more than by official author- ity. Nevertheless, the efficient monitoring and sanctioning of breaches are vital conditions for its smooth running and are even particularly justified for reasons of economic competition1.
The Protocol’s negotiators had this in mind from the outset. But during the Kyoto confer- ence in 1997, no agreement was reached as to the actual content of a non-compliance proce- dure. This thorny issue was postponed until the first Meeting of the Parties (COP/MOP). In 1998 a working group was set up, which suc- ceeded after several meetings in drawing up a non-compliance procedure. Particularly con- troversial, this procedure was part of a package deal represented by the Bonn-Marrakech agree- ments, adopted by the Conference of the Par-ties to the Framework Convention on Climate Change (COP) in 20012. In December 2005 in Montreal, the first COP/MOP did not reopen the discussion on its content and adopted mutatis mutandis the text the COP had proposed. At a time when compliance mechanisms – in other words monitoring the fulfillment of com- mitments and sanctions for non-compliance – are being set up, three main questions arise. What is the relationship between these mecha- nisms and the more classical mechanisms for settling international disputes? How are they original, and particularly are they judicial or not? And finally, what is the scope of the proce- dure adopted, binding or not binding?
Compliance, a substitute for classical dispute settlement mechanisms?
Almost all international environmental pro- tection conventions include a classical dispute settlement clause, holding that any dispute re- lating to the interpretation and application of the convention shall be settled by diplomatic means or, should this fail, by (generally option- al) recourse to international jurisdiction, an ad hoc court of arbitration or the International Court of Justice. Although for many years such provisions were not availed of, they have re- cently resulted in three arbitration awards: in the Bluefin Tuna case between Australia, New Zealand and Japan4, in the MOX Plant case be- tween Ireland and the United Kingdom5, and in the Clearance of Accounts case between the Netherlands and France6. In all three cases, the establishment of a court of arbitration was re- quested unilaterally, without the need for the agreement of the conflicting parties.
The Kyoto Protocol contains no specific dispute settlement clause, but stipulates that “The provisions of Article 14 of the Convention on settlement of disputes shall apply mutatis mutandis to this Protocol”7. However, article 14§1 of the Convention states that the parties shall seek to settle their disputes by diplomatic means. In case of failure, article 14§2 contains an optional judicial settlement clause: parties may agree in advance to submit disputes to the International Court of Justice or to a court of arbitration. Its activation in response to a breach of the Convention is theoretically pos- sible, especially given that both the concept of a “dispute (...) concerning the interpretation or application of the Convention” and the no- tion of injured State should be understood in a broad sense. Made up of obligations and tools for reducing emissions, the core of the Proto- col probably enters the category of erga omnes partes obligations (in relation to all parties to the treaty). For obligations of this kind, an “uni- versalization of accountability relationships”8 –making it possible to consider that, even in the absence of any identified damage, a State is injured simply by the fact of another State violating an international environmental pro- tection convention to which they are both par- ties – should be accepted.
In practice though, because it is optional, this clause is likely to have little effect. Indeed, the clause met with almost no success: of the 189 parties, only the Solomon Islands have accepted the mandatory arbitration of article 14§2. This rejection by States is revealing: such clauses are unsuited to the settlement of disputes arising from the interpretation or application of multi- lateral conventions adopted for the protection of a “collective interest”9. Indeed, fearing they may become a target in turn, States are reluc- tant to use them “simply” to protect a collec- tive interest. Moreover, the significant number of parties makes the traditionally mutual and decentralized monitoring of compliance with international law a difficult task.
This observation goes far beyond the field of climate change and can be extended to all in- ternational environmental protection conven- tions. It has led to a move to find alternative ways of settling disputes with an essentially preventive vocation. First, monitoring is no longer carried out on a case-by-case basis, but continuously. Next, it is no longer bilateral and reciprocal, but multilateral and centralized, placed in the hands of conventional bodies, as is the response to non-compliance, which in- cludes assistance and incentives in addition to actual sanctions (carrots and sticks). Collective measures will be more readily adopted, better tolerated and in theory less discretionary. Al- though the obligations are “hard” ones, moni- toring procedures are implemented with flex- ibility, with a “soft enforcement”10 approach. The example of this is the non-compliance procedure drawn up in 1992 within the frame- work of the Montreal Protocol on Substances that Deplete the Ozone Layer, a procedure that has already been taken up and adapted by a dozen other environmental conventions.
The Kyoto Protocol has given rise to the most comprehensive non-compliance procedure to date. The importance of environmental issues and the specificity of the Protocol, which uses economic tools, explain the step taken and its degree of refinement11.
Innovative mechanisms
The aim of the procedure is to “facilitate, promote and enforce compliance with the com- mitments under the Protocol”. This therefore implies above all preventing breaches by iden- tifying difficulties as early as possible, rather than settling disputes. The potential sanctions are essentially intended to be dissuasive; they will only be used as a last resort.
At the institutional level, the procedure rests with a committee which monitors compliance with the Protocol’s provisions. This Compli- ance Committee operates within the frame- work of a plenary, a bureau and two branches, the “facilitative branch” and the “enforcement branch”. The Committee is one of the most powerful and independent committees of its kind established by an environmental conven- tion12. Made up of 20 members elected during the COP/MOP in Montreal, it has been opera- tional since March 2006. The members, who are elected for four years, sit “in their personal capacity”. They are of recognized competence in the field of climate change and in “relevant fields, such as the scientific, technical, socio-eco- nomic and legal fields”. Furthermore, members of the enforcement branch must have experi- ence in the legal field.
The functions of the plenary are mostly ad- ministrative and budgetary. It is the branches that deal with cases of non-compliance, and the bureau that submits implementation is- sues to the competent branch. The procedure can be set in motion by the Secretariat, based on the reports of Experts Review Teams that inspect the national reports the parties must submit. Here, the secretariat has its hands tied: it has less authority than the secretariat of the Montreal Protocol on substances that deplete the ozone layer. The procedure can also be launched by “any party with respect to itself”. This possibility is also recognized under the Montreal Protocol for the ozone layer. From experience, it is in fact generally the party con- cerned that requests the launch of the proce- dure itself: reporting its difficulties, it requests assistance from the community of parties. The third possibility is that the procedure can be launched by “any Party with respect to another Party, supported by corroborating information”. In the case of a breach, States thus have the op- portunity to assert a soft legal interest, in other words their authority to act as a representative of the community of parties to protect the com- mon interest13. This possibility, although little used in other environmental conventions that have tried out procedures of this kind, could however be used here, in view of the economic consequences of the Protocol.
The role of the multidisciplinary facilitative branch is to provide technical and financial ad- vice and assistance to States experiencing dif- ficulty in meeting their commitments. In order to do so, it must consider the “principle of com- mon but differentiated responsibilities and re- spective capabilities” of States. This approach is above all educational. The branch can facili- tate the provision of assistance outside the con- ventional sphere; it can also turn to the Global Environment Facility (GEF) and the different conventional funds.
The enforcement branch has a different pur- pose. Its approach is more intrusive. Reactions to non-compliance range from incentives and support to States in breach to sanctions. This gradation exists in other non-compliance pro- cedures. But the structure of the Committee is wholly original: the existence of two branches reflects the duality of a procedure that is both preventive and reactive. The enforcement branch is in fact responsible for establishing whether or not the parties comply with their assigned commitments to limiting and reduc- ing emissions, with provisions concerning methodology and communicating information
(inventories, reports), and eligibility criteria for flexibility mechanisms14. In the case of a disagreement between a party and an expert review team under article 8, the Branch can also “apply adjustments to inventories” (art. 5§2) or “a correction to the compilation and accounting database for the accounting of as- signed amounts” (art. 7§4).
Among the “consequences” when non-com- pliance is established, the enforcement branch can make a declaration of non-compliance, which constitutes an initial sanction that works through the reputation effect (name and shame). It can also ask the party concerned to present a plan analyzing the causes of non- compliance and indicating the measures and agenda for correcting this situation. The branch can also suspend eligibility for flexibili- ty mechanisms if a party does not meet the cri- teria set or if its emissions exceed the amounts assigned. In this case, the amounts assigned for the following period will be reduced by 1.3 times the excess amount. The sanctions can therefore be considerable. Few international conventions have gone this far in the defini- tion of a binding regime to react to breaches. Such measures are possible because the Proto- col uses economic tools. However, though very elaborate, the system is not totally fail-safe. A State experiencing great difficulty could choose to override it. Of course, it would be excluded from market mechanisms and “banished” from the community of parties, but it could on the other hand accumulate environmental debts until they became irrecoverable15. Everything will depend in the end on the attractiveness of market mechanisms. The more attractive they are the more States will fear exclusion and the greater the pressure they will accept from the private sector to avoid or reduce the duration of such exclusion. Furthermore, the uncertain- ty surrounding the second commitment period (post-2012) is undermining motivation some- what. Finally, as national objectives are negoti- ated by States, a party could always renegotiate its reduction objectives for the second period, integrating the weight of potential penalties.
Has the Compliance Committee been giv- en jurisdictional competence, thus creating – without acknowledging it – a new interna- tional tribunal? This is a tricky question given how difficult it is to systematize the notion of international court16. But the procedure fol- lowed, at least before the enforcement branch, is undeniably hybrid. It goes beyond a classi- cal diplomatic procedure of the conciliatory or even mediatory kind. The enforcement branch will be able to make a ruling on disputes, even if this is not its main attribution. It will make a decision based on law and not on appropri- ateness considerations (unlike the facilitative branch). This decision will be mandatory and opposable to the concerned State, even if a form of appeal for irregular procedures before the COP/MOP is provided for. These are three elements of the definition of what is an inter- national jurisdiction, to which could be added the fact that the members elected by the COP/ MOP act in their personal capacity and have legal expertise, the fact that the procedure con- siders adversary proceeding and the rights of the defendant, the form of decisions that re- minds of the International Court of Justice’s, and the public nature of decisions etc.
Stimulating as it is, this issue is of entirely theoretical interest. On the other hand, exam- ining the scope and potential impacts of the non-compliance procedure takes on a highly practical interest.
What are the scope and the potential impacts of the Protocol’s compliance mechanisms?
As the mechanisms were defined in the Bonn-Marrakech agreements, the discussion in Montreal focused not on their content, but on the thorny issue of their scope and potential impact. Article 18 of the Protocol stated that the COP/MOP “shall, at its first session, ap- prove appropriate and effective procedures and mechanisms to determine and to address cases of non-compliance with the provisions of this Protocol, including through the development of an indicative list of consequences, taking into account the cause, type, degree and frequency of non-compliance. Any procedures and mecha- nisms under this Article entailing binding con- sequences shall be adopted by means of an amendment to this Protocol”. Visibly hoping to introduce an exemption (opt out) clause17, Saudi Arabia made a proposal along these lines that was not accepted. The European Un- ion, widely supported, highlighted the need to make the system rapidly operational and pro- posed a two-phase approach: the adoption of compliance mechanisms by means of a COP/ MOP decision, then the launch of a process that could eventually lead to an amendment of the Protocol 18. The COP/MOP decision is in this spirit. It adopts the procedure while launching negotiations on this point, in order to enable the third COP/MOP to reach a decision.
One of the arguments against the amend- ment of the Protocol is based on article 20 which stipulates that an amendment must be
accepted by a Party in order to enter into force as far as it is concerned. Parties thus keep a right of veto, not at the time the amendment is adopted by the COP/MOP, which does not require unanimity, but at the time of its ratifi- cation. Indeed, these procedures are in essence long and uncertain, all the more that the adop- tion of such an amendment is far from agreed upon by the parties. The risk would therefore be creating two categories of parties: those bound by the amendment, for which the proce- dures would entail binding consequences, and those that would not be bound by the amend- ment, theoretically shielded from such conse- quences. During the negotiation of the Bonn- Marrakech agreements, the European Union attempted to make the right to participate in the Protocol’s flexibility mechanisms depend on a definite acceptance to be bound by the Protocol’s provisions on the non-compliance procedure. This proposal was not accepted.
While awaiting a hypothetical decision by the third COP/MOP, the situation is unclear. How can the repressive part of the compliance procedure work if it does not bind the parties? Isn’t the compliance mechanism in fact man- datory since a State’s eligibility for flexibility mechanisms depends on its subjection to the procedures applicable in the field of compli- ance monitoring and verification?
As long as the amendment is not adopted, the situation will remain confused and the par- ties which could find themselves in the hot seat would be able to benefit from this situation. The originality of the compliance procedure is that it allows considering sanctions. But unless the amendment is adopted, the “facilitation” aspect will considerably override the “enforce- ment” aspect.
The discussion on the scope and potential impacts of the non-compliance monitoring and verification procedure is part of the new negotiation package, which includes the post- 2012 period and the allocation of greenhouse gas reduction objectives to emerging countries. Its outcome will probably depend on that of the whole of the negotiations. Ideally, the re- vision of the Protocol aimed at defining new reduction obligations for the second commit- ment period should ensure that compliance becomes a condition for participating in the Protocol.
1 | S. Kerr, “Additional Compliance Issues Arising from Trading”, in Global Emissions Trading. Key Issues for Industrialized Countries, S. Kerr (dir.), Edward Edgar Publishing, 2001, from p. 85; C. Boemare, P. Quirion “Implemen- ting greenhouse gas trading in Europe: les- sons from economic literature and inter- national experiences”, Ecological Economics, 43/2002, from p. 213.
2 | Decision 24/CP.7, Procedures and mechanisms relating to compliance under the Kyoto Protocol, FCCC/CP/2001/13/ Add.3, p. 68.
3 |Decision 27/CMP1, Procedures and mechanisms relating to compliance under the Kyoto Protocol, FCCC KP/CMP/2005/L.1.
4 |Southern Bluefin Tuna Case, Australia and New Zealand v. Japan, Award on Jurisdiction and Admissibility, 4 August 2000, [http:// www.intfish.net/ cases/fisheries/sbt2/ index.htm], consulted on 30 March 2007.
5 |Dispute concerning Access to Information under article 9 of the OSPAR Convention, Irl. v. United Kingdom, Final Award, 2 July 2003, [http://www. pca-cpa.org/PDF/ OSPAR%20Award. pdf], consulted on 30 March 2007.
6 | Dispute concerning the clearance of accounts between the Kingdom of the Netherlands and the French Republic under the Protocol of 25 September 1991 to the Convention on the protection of the Rhine against chloride of 3 December 1976, Netherlands/France, arbitration award of 12 March 2004, [www. pca-cpa.org/ENGLISH/ RPC/#Netherlands/ France], consulted on 30 March 2007.
7 |Art.19oftheProtocol.
8 | L.-A. Sicilianos, « Clas- sification des obliga- tions et dimensions multilatérales de la responsabilité inter- nationale », in Obli- gations multilatérales, droit impératif et res- ponsabilité internatio- nale des États, P.-M. Dupuy (ed.), Pedone, Paris, 2003, p. 169.
9 |Expression found in article 48 (invocation of responsibility by a State other than an injured State) of the International Law Commission’s Draft Articles on Respon- sibility of States for Internationally Wron- gful Acts (2001).
10 |O. Yoshida, “Soft Enforcement of Trea- ties: The Montreal Protocol’s Non-com- pliance Procedure and the Functions of Internal International Institutions”, Colo. J. Int’l Envtl. L. & Pol’y, 1999, pp. 95-141; M. Koskenniemi, “Breach of Treaty or Non- Compliance? Reflec- tions on the Enforce- ment of the Montreal Protocol”, YIEL, 1992, p. 131.
11 | J. Werksman, “Com- pliance and the Kyoto Protocol: Building a Backbone into a ‘Flexible’ Regime”, YIEL, 1998, vol. 9, p. 65.
12 | J. Voïnov Kohler, Le mécanisme de con- trôle du respect du Protocole de Kyoto sur les changements climatiques : entre diplomatie et droit, Doctoral thesis in Law, University of Geneva, 2004, p. 139.
13 |L. Boisson de Cha- zournes, « La mise en œuvre du droit international dans le domaine de la pro- tection de l’environ- nement : enjeux et défis », op. cit., p. 66.
14 |Three mechanisms aim at facilitating the reduction of greenhouse gases and associated costs: the Clean Development Mechanism (CDM), Joint Implementation (JI) and the emissions trading system.
15 |R. Guesnerie, Kyoto et l’économie de l’effet de serre, Rapport CAE #39, La Documenta- tion Française, Paris, 2003, p. 72.
16 | L. Cavaré, « La notion de juridiction interna- tionale », AFDI, 1956, pp. 502-503.
17 | Proposal by Saudi Arabia aimed at modifying the Kyoto Protocol, FCCP/KP/ CMP/2005/2, 26 May 2005.
18 | Adoption of procedu- res and mechanisms relating to compliance under the Kyoto Proto- col, in terms of Arti- cle 18 of the Kyoto Protocol, FCCC/KP/ CMP/2005/MISC.1.