Environmental non-compliance procedures and international law

Abstract

A number of recent environmental treaties provide for a non-compliance procedure (NCP) to address failure by Contracting Parties properly to implement their treaty obligations. Examples include the 1987 Montreal Protocol to the 1985 Vienna Convention on the Protection of the Ozone Layer; the 1991 VOC and 1994 Sulphur Protocols to the 1979 Long-Range Transboundary Air Pollution Treaty; the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic; and the 1997 Kyoto Protocol to the 1992 Framework Convention on Climate Change, all of which envisage a separate mechanism for compliance being established. This recourse to non-compliance procedures is evidence of a growing awareness that traditional rules of international law concerned with material breach of treaty obligations and with state responsibility are inappropriate – and, indeed, unable – fully to address problems of environmental treaty compliance. This is a consequence both of the nature of international environmental obligations, in particular their non-reciprocal character, and of the inherent limitations of the present rules relating to treaty breach and state responsibility in addressing harm especially to the global commons. This is a consequence both of the nature of international environmental obligations, in particular their non-reciprocal character, and of the inherent limitations of the present rules relating to treaty breach and state responsibility in addressing harm especially to the global commons. Even the innovative provisions of the current draft articles of the ILC on state responsibility, which address breach of multilateral and erga omnes obligations and are discussed further below, do not completely fill the ‘responsibility gap’. Nonetheless recent international environmental agreements do not eschew traditional international law mechanisms; indeed, in all of the instances cited above, non-compliance procedures function alongside traditional dispute settlement mechanisms. This duality is possible if one views NCPs as located within a wider category of non-confrontational dispute avoidance procedures which combine classical methods, which have their roots in the dispute settlement mechanisms developed under general international law, with ‘innovative procedures for enhancing compliance with, and responding to, non-performance of international obligations.’