Part II - Specific Procedures

5 The Advisory Procedure in Non-Compliance Procedures Lessons from the UNECE Water Convention

Carlos A. Cruz Carrillo

5.1 Introduction

The advisory function of international judicial bodies remains an important judicial tool to elucidate the scope and content of international obligations. Today, many international judicial bodies are entrusted with an advisory function under different architectures.¹ As is well known, advisory opinions are not binding but do entail legal effects in the interpretation and application of law.² Recently, the advisory function is likewise permeating some compliance mechanisms established by multilateral environmental agreements (hereinafter referred to as ‘MEAs’). This chapter examines the novelty of the advisory procedure envisaged in the mandate of non-judicial bodies as a new development in the implementation and compliance of MEAs.

Since the second half of the twentieth century, many MEAs have created an institutional framework to foster compliance with the agreement in question.³ Particularly, MEAs usually provide for the establishment of compliance or implementation committees (hereinafter referred to as ‘CCs’) aimed at facilitating and monitoring compliance with the agreement in question.⁴ Such compliance review bodies are mandated to carry out procedures that are mostly non-adversarial and non-punitive in nature. Yet the outcome of these procedures may in some cases entail the adoption of sanctions for Parties found to be in non-compliance, directly by said bodies, or by the Meeting of the Parties (hereinafter referred to as ‘MoP’ or ‘CoP’) on the recommendation of CCs. Few MEAs add a so-called ‘advisory procedure’ to these procedures. This chapter argues that an advisory procedure fosters effective implementation by offering tailored technical and legal advice to States, attending to their particular circumstances, without confrontation and intrusive sanctions. Drawing on the advisory procedure of the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (hereinafter referred to as ‘UNECE Water Convention’), this chapter identifies areas of opportunity for enhancing implementation and compliance with current and future MEAs.

This chapter will be organized as follows. First, it will give a brief overview of the nature of non-compliance mechanisms (hereinafter referred to as ‘NCMs’). Second, it will examine the advisory procedure specifically provided for the Implementation Committee of the UNECE Water Convention (hereinafter referred to as ‘IC’). Third, it will identify areas of opportunity for adoption of a similar advisory procedure to help improve the implementation of other existing and future multilateral agreements.

5.2 Non-Compliance Procedures in a Nutshell

As anticipated, many MEAs envisage the possibility of establishing CCs managed by the CoP/MoP or by specialized subsidiary bodies. Their main objective is to foster the implementation of and compliance with an MEA, and prevent environmental damage.⁵ According to the United Nations Environment Programme (UNEP), ‘compliance’ is the fulfilment by the contracting Parties of their obligations under a MEA, whereas ‘implementation’ refers to the measures that contracting Parties adopt to meet their obligations.⁶ In this context, CCs have particular common features that may attract the interests of Parties as a venue to tackle their implementation issues. The first is their non-judicial and non-confrontational nature. Second, these mechanisms aim at facilitating compliance rather than stigmatizing the concerned Party with measures or sanctions. A third common feature is the relevance of the duty of Parties and the treaty bodies to co-operate as a cornerstone of these mechanisms.⁷

Compliance or implementation committees’ procedures can be seen as a public interest process where great attention is paid to due process and independence as a guarantee of legitimacy.⁸ Further, the options to trigger a non-compliance procedure reflect the Parties’ common interest in protecting the object of an MEA (watercourses, public participation, ozone layer, climate action, etc.).⁹ The only precondition for triggering a compliance procedure is being a Party to the treaty and complying with the procedural requirements established to that end. Commonly, non-compliance procedures can be triggered by States and by particular bodies (e.g., CoP/MoP, implementation bodies). However, a few compliance mechanisms allow for broad public participation. For example, in the mechanisms established by the UNECE Aarhus Convention,¹⁰ the Escazú Agreement¹¹ the UNECE Water Convention¹² or the Protocol on Water, and Health¹³ members of the public can actively participate in non-compliance procedures, either by triggering a procedure or by submitting information. Some authors also consider CCs an effective alternative to a judicial dispute settlement mechanism, which could entail a long process before a judgment or award is rendered.¹⁴ Moreover, the outcome of these mechanisms does not result in res judicata, which makes them a less intrusive procedure in terms of state sovereignty.¹⁵

One of the very first NCMs to appear was that of the 1987 Montreal Protocol on Substances That Deplete the Ozone Layer.¹⁶ Article 8 provided for the Parties to consider and approve mechanisms for determining non-compliance, which led to the establishment of the Implementation Committee in 1992.¹⁷ A Party to the Protocol can trigger a procedure with respect to its non-compliance, or with respect to another Party. The Secretariat can also trigger the procedure. The Committee can adopt facilitative measures such as providing financial and technical assistance to foster the compliance of the concerned Party. However, the Committee can also adopt measures such as declarations of non-compliance, cautions and even the suspension of rights and prerogatives.¹⁸

While the Implementation Committee of the Montreal Protocol stands as the model from which later NCMs were established,¹⁹ one may refer also to the latest generation of such mechanisms provided for in the 2015 Paris Agreement,²⁰ the 2013 Minamata Convention²¹ and the 2018 Escazú Agreement.²² The institutional and functional architecture of CCs under these agreements follows that of the Montreal Protocol, with some procedural adjustments concerning the actors entitled to initiate a procedure, or pertaining to the outcome of the procedure. For example, one may note the twofold CC established under the Kyoto Protocol, which comprises a facilitative and an enforcement branch. In certain circumstances, the outcome of the Kyoto Protocol procedures can result in binding recommendations.²³

This chapter proposes the following taxonomy of functions ascribed to CCs among MEAs:

• Reporting/Monitoring procedure. This function is a traditional implementation technique used across MEAs and draws on the obligation of States to periodically report on the measures they have adopted to implement their obligations under the MEA in question.²⁴ Periodic reports enable the CoP or the CCs to foresee a State’s difficulties in complying with certain obligations of the MEA. In these cases, the CoP or the CC of an MEA may ask the Party concerned for additional information and decide whether to trigger a non-compliance procedure. Moreover, if a Party fails to comply with the obligation to report, the CC may trigger a non-compliance procedure.

• Triggered by the Committee. The CC can initiate motu propio a compliance procedure against a member State when the Committee has knowledge that the Party is failing to comply with its obligations under an MEA. As a basis for its decisions, the Committee can rely on the national reports submitted by the Parties under a monitoring procedure, or on information submitted by bodies of an MEA or by members of the public.

• Submission procedures. This procedure enables the mechanism to analyze particular non-compliance situations submitted by a Party with regard to its own performance (self-triggering); by a Party with regard to the performance of another Party; by the CoP; or by members of the public.²⁵ The outcome of a submission procedure generally entails facilitative measures such as technical and financial assistance to enhance compliance by the Party concerned. In a few cases, MEAs allow punitive measures, such as the suspension of rights and prerogatives.²⁶ The case law produced under this procedure is significant within the Aarhus Convention, mainly triggered by individuals and non-governmental organizations.²⁷ Similarly the case law of the Montreal Protocol,²⁸ the Espoo Convention²⁹ or the Kyoto Protocol.³⁰

• Advisory procedure. The advisory procedure enables a CC to deliver legal and technical advice upon the request of a CC Party, the CoP or other organs of an MEA. The ultimate goal of this procedure is to facilitate the compliance with and implementation of an MEA. Thus, the procedure results in advice with recommendations for the Party, or Parties, concerned, but without measures stigmatizing any Party, as may be perceived in a submission procedure.

This chapter will focus on examining the advisory procedure as one of the most recent procedures formally established as a means to provide facilitative assistance to the Parties of an MEA. The chapter looks particularly at the advisory procedure under the UNECE Water Convention, examining the architecture of this procedure and analyzing the potential benefits of employing similar procedures as part of implementation and compliance procedures across MEAs more widely.

5.3 Advisory Opinions in the UNECE Water Convention

5.3.1 General Overview of the Water Convention’s Compliance and Implementation Machinery

The UNECE Water Convention was adopted in 1992 and entered into force in 1996.³¹ The main objective of the UNECE Water Convention is promotion of the sustainable management of transboundary waters, surface waters and ground waters. In order to help achieve that aim, the Convention sets out substantive and procedural obligations based on the principle of prevention, the obligation to co-operate, the principle of reasonable and equitable use and the no harm principle.³² Moreover, this treaty includes a series of principles to be considered by the Parties when adopting measures to comply with and implement its obligations, namely, the precautionary principle, the polluter-pays principle and the principle of inter-generational equity.³³ Initially, this treaty remained a regional instrument for the European region. However, following a proposal by Switzerland, the Meeting of States Parties to the Convention adopted Decision III/1, allowing all United Nations member States to accede to the Convention.³⁴ Following this amendment, a number of countries from the African³⁵ regions acceded.

As to implementation and compliance, Article 17(2)(f) of the UNECE Water Convention enabled the MoP to create an Implementation Committee, which was established in 2012 with the adoption of Decision VI/1 of the MoP.³⁶ The IC aims at facilitating, promoting and safeguarding the implementation and application of and compliance with the UNECE Water Convention.³⁷ The nature of the mechanism is non-confrontational, non-adversarial, transparent, supportive and co-operative.³⁸ The IC has an interdisciplinary composition of nine members with legal and scientific expertise.³⁹

The IC is entrusted with a submission procedure, a procedure triggered by the IC to request further information and an advisory procedure. The submission procedure⁴⁰ can be triggered by any Party to the Convention with regard to its own issues of non-compliance (self-referral), by a Party with regard to issues of another Party or by the IC initiative in the absence of submissions. The procedure triggered by the IC motu proprio operates when the IC is aware of difficulties in the implementation of or non-compliance with the Convention.⁴¹ In making a determination on whether to trigger a procedure, the IC should consider the source, content and relevance of the information submitted to it, including information submitted by the public.⁴² This factor may be regarded as an indirect substitute for procedures allowing for submissions, or referrals, from the public as in the Aarhus Convention or the Protocol on Water and Health.⁴³ The advisory procedure will be explained in a further section.

The outcome of a submission procedure is the adoption of facilitative measures aimed at supporting implementation of and compliance with the obligations in the Convention. In this regard, the IC can adopt one or more of the following measures:

1. I. Provide advice and facilitate assistance to the concerned Parties, including:

   1. (i) Suggesting or recommending that domestic regulatory regimes be set up or strengthened, and relevant domestic resources be mobilized as appropriate;

   2. (ii) Assistance in establishing transboundary water cooperation agreements;

   3. (iii) Facilitating technical and financial assistance;

   4. (iv) Assistance in seeking support from specialized agencies and other competent bodies, as appropriate.

2. II. Request and assist the concerned Parties in elaborating an action plan to facilitate implementation and compliance, within a time frame agreed by the Parties and the Committee;

3. III. Request the submission of progress reports.⁴⁴

Furthermore, the IC can recommend the MoP adopt one or more of the above-mentioned measures or take other restrictive measures, including: issuing a statement of concern; issuing a declaration of non-compliance; issuing cautions; or the suspension of rights and privileges accorded to the Party concerned.⁴⁵ For this purpose, the MoP should consider the cause, type, degree and frequency of the Party’s difficulties with implementation and/or non-compliance.

5.3.2 Comparing the Water Convention’s Advisory Procedure with Implementation and Compliance Procedures in Other MEAs

As mentioned, the architecture of the NCM of the UNECE Water Convention follows the same pattern as the Montreal Protocol. However, the IC of the Water Convention has an advisory function, which is unusual when compared with the more standard procedures employed by other NCMs. The advisory function is implicitly included in many implementation mechanisms. For instance, CCs operating under the Nagoya Protocol,⁴⁶ the Cartagena Protocol⁴⁷ and the London Protocol⁴⁸ among others, deliver advice and recommendations, but only as a measure following a non-compliance procedure.

Other CCs can deliver advice as a separate procedure. For example,⁴⁹ the CC of the Protocol on Water and Health has a consultation process to facilitate and support implementation by issuing technical, scientific and legal advice.⁵⁰ This procedure only operates if a Party requests it or if the CC proposes it. The case of the compliance mechanism of the Aarhus Convention is distinct. The Convention and Decision I/7 (which establishes the Structure and Functions of the CC) did not include ab initio an advisory function for the CC.⁵¹ Yet following a request for advice filed by Belarus, the MoP and the CC delineated such an advisory function. First, the Secretariat prepared a draft response which was circulated for the consideration of the CC and the Party concerned.⁵² Afterwards, the CC adopted its recommendation ACCC/A/2014/1 with respect to Belarus.⁵³ In a second request for advice by Kazakhstan, the CC, without the support of the Secretariat, set out more clearly that its advisory function was founded in accordance with paragraphs 14, 36(a) and 37(a) of the annex to Decision I/7.⁵⁴ In both decisions, the outcome of the request for advice entailed recommendations with regard to the meaning and scope of particular terminology in the Convention, as well as a recommendation for the requesting Party to pursue certain measures at the domestic level. A third request for advice was filed by Ukraine and is pending.⁵⁵ What is uncertain in this new procedure is whether the requesting Party can become the object of measures by the CoP should it fail to implement the recommendations of the CC, and whether it remains potentially subject to a submission procedure in respect of the concerns addressed through the advisory function.

The UNECE Water Convention advisory procedure derives from the constitutive Decision by the MoP, which provides explicitly for it and underscores that the advisory procedure ‘shall not be regarded as alleging non-compliance’.⁵⁶ Therefore, as will be explained in detail, the outcome of the advisory procedure is legal and technical advice without the possibility that the Committee might suggest the MoP take action in respect of relevant concerns.⁵⁷ Another noteworthy aspect of the Convention’s advisory procedures is the clarity of the process regarding who can request an advisory opinion and the effects of an advisory opinion for the requesting entity. The scope of the advisory procedure embraces two situations. First, when a Party seeks advice on its difficulties in implementing the UNECE Water Convention. Second, when a Party or Parties seek advice on how to implement the Convention with respect to another Party and/or with non-Parties to the Convention. Thus, the advisory procedure has a facilitative and preventive dimension inasmuch as it seeks for the Parties to identify potential issues of non-compliance, request guidance to resolve them and, at the same time, prevent further disputes with other Parties or non-Parties with a legal interest.

The advisory procedure produces advice tailored to the needs of the requesting Party for the purposes of implementing the Water Convention. According to its constitutive Decision, the Committee may include inter alia the following in its advisory opinion:

• Advice and assistance to an individual Party or group of Parties to facilitate the implementation of the Water Convention. The Committee can particularly recommend the enhancement of domestic regulatory regimes; provide assistance in establishing transboundary water co-operation agreements; facilitate technical and financial support, including information and technology transfer and capacity building; or provide assistance to seek support from specialized agencies;

• Requesting and assisting the Party or Parties concerned to develop an action plan to facilitate implementation, within a timeframe agreed between the IC and the Parties;

• Inviting the Party concerned to submit progress reports on the efforts that it is making to implement the Convention.⁵⁸

These suggestions are similar to the facilitative measures that the IC can adopt in the context of a submission procedure. However, it is not contemplated that, in the context of the advisory procedure, the Committee would recommend to the MoP the adoption of measures such as issuing statements of concern or a declaration of non-compliance, cautions or the suspension of rights and privileges. Therefore, an advisory opinion seems to be a way for States to seek guidance in the implementation of the Convention without being subject to such measures. Nevertheless, nothing prevents the Committee using the information derived from an advisory procedure to act motu proprio with regard to the same State, or States concerned, under a more stringent procedure.

In terms of standing, the advisory procedure is open to States Parties to the Water Convention, with regard to their own actions or those of other Parties, and to non-States Parties. In the case of non-States Parties, their participation in the advisory procedure is subject to their consent.⁵⁹ The opening of the Water Convention to all UN member States in 2003 has enabled the IC to expand its functions to regions beyond Europe. For example, if Ghana,⁶⁰ which recently acceded to the Water Convention, decides to request advice from the Committee on activities conducted on the Black Volta River, the Committee could consider inviting Burkina Faso or Côte d’Ivoire to participate in the advisory procedure as riparian States. However, since the latter two States are non-Parties to the Water Convention, their consent to participation is essential. In fact, the Committee is obliged to explain the advisory procedure to those Parties and suggest their participation.⁶¹

Finally, public participation is possible within the functions of the IC and other mechanisms in at least in two ways. First, members of the public can transmit information to the Committee on a Party’s non-compliance, on the basis of which the Committee may initiate motu proprio a procedure against the concerned Party.⁶² Second, during the advisory and submission procedures the Committee shall take into account the information submitted by the public.⁶³

5.3.3 An Example of the Water Convention’s Advisory Procedure: The Cijevna/Cem River Advisory Procedure (WAT/IC/AP/1 – Montenegro and Albania)

The Cijevna/Cem River advisory procedure provides a good example of the effectiveness of the Water Convention advisory procedure. On 22 November 2019, Montenegro filed a letter to the Secretariat of the UNECE Water Convention, afterwards circulated to the IC of the UNECE Water Convention. In its letter, Montenegro expressly requested the involvement of the IC in relation to the construction of small hydropower plants on the Cijevna/Cem River in Albania.⁶⁴ Montenegro was not clear as to the procedure under which it was approaching the IC, which appeared to fall somewhere between a submission and a request for the advisory procedure. The IC analyzed Montenegro’s letter and considered it a request for the exercise of its advisory function. Yet it also left open the possibility of initiation at a later stage of a motu proprio procedure.⁶⁵ In accordance with the established process, the IC invited Albania to participate in the advisory procedure. Albania agreed to do so on 31 January 2020.⁶⁶

The situation at Cijevna/Cem River is also the object of a submission procedure before the Implementation Committee of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention). Montenegro instituted proceedings under the Espoo Convention on 11 September 2019,⁶⁷ and Albania replied on 30 December 2019, asserting compliance with its obligations under this treaty.⁶⁸ At the moment of writing this chapter, the procedure is ongoing and has not yet led to an outcome. In this context, an interesting preliminary aspect of the procedure is the co-ordination between the implementation committees of the UNECE Water Convention and the Espoo Convention,⁶⁹ who agreed on sharing information related to the matter through their secretariats.⁷⁰ A similar situation is less likely to occur among judicial and arbitral bodies.

The Committee held several information-gathering and consultation sessions with Albania and Montenegro. The Committee decided to adopt a two-track approach: to facilitate the exchange of information between both countries and to assist in the establishment of a joint monitoring and assessment framework for surface waters, groundwater and ecosystems in the Cijevna/Cem River.⁷¹ During the process, Albania proposed the existing bilateral commission established under the 2018 Framework Agreement on Mutual Relations in the Field of Management of Transboundary Waters as a forum for consultations with Montenegro. The Committee proposed a joint technical working group within the framework of this bilateral commission. Albania underscored the importance of avoiding duplication with the existent mechanisms, such as the efforts adopted in the framework of the mechanism governing the Drin River basin.⁷² The Committee clarified the scope of the advisory procedure as limited to the Cijevna/Cem River and not the Drin River.⁷³

The Committee delivered its legal and technical advice in March 2021.⁷⁴ The Committee held that due to the absence of sufficient monitoring information and data, it was unable to confirm or deny the likelihood of a cumulative transboundary impact caused by the planned construction.⁷⁵ However, the Committee elaborated on the potential difficulty of implementing certain obligations of the Water Convention. In this regard, the Committee recognized that the Convention’s procedural obligations are instrumental in operationalizing substantive obligations such as the obligations to prevent, control and reduce transboundary impact. The Committee examined the matter of the Cijevna/Cem River in the context of the procedural obligations of establishing joint bodies, concluding transboundary water agreements, holding consultations, joint monitoring and assessment and exchanging data and information.

Particularly, the Committee advised Albania and Montenegro to enhance their efforts in implementing the obligation of carrying out joint monitoring and assessment by establishing a joint or co-ordinated monitoring and assessment framework. Similarly, the Committee advised the Parties on developing a practice of exchanging information and data, and procedures in pursuit of that aim.⁷⁶ Albania and Montenegro engaged in a joint effort to implement the Committee’s advice. In particular, both countries are working on establishing the joint technical working group for monitoring and assessment of the Cijevna/Cem River. The Parties submitted to the IC a first briefing on the implementation on 20 May 2021.⁷⁷ The IC continues to assist Albania and Montenegro.

5.3.4 Contributions of the Advisory Procedure to the Implementation of MEAs

This section of the chapter will elaborate on three valuable dimensions of the Water Convention’s advisory procedure. First, the role of the advisory procedure in water diplomacy and the prevention of further disputes. Second, the importance of having a tailored legal and technical advisory opinion to assist in the implementation of an MEA. Third, the areas of opportunity where the advisory procedure may enhance the implementation of current and future MEAs.

5.3.4.1 The Conciliatory Role of the Advisory Procedure in the Context of Water Diplomacy

Water diplomacy mainly hinges on co-operation agreements such as the recent co-operation framework on the Senegal–Mauritanian Aquifer Basin.⁷⁸ In the absence of co-operation agreements and the will to implement them, States may engage in long-lasting and costly disputes such as the dispute relating to the Gabčíkovo–Nagymaros Project or the ‘Dispute over the Status and Use of the Waters of the Silala’,⁷⁹ both before the ICJ. In this context, the first remarkable feature of the advisory procedure is its role in fostering water diplomacy to help prevent long-lasting and costly disputes.

In particular, the advisory procedure provides alternative ways forward to two or more States with competing interests in a shared resource. This feature is not present in other non-compliance procedures, and it is unique because its main objective is to explore potential solutions with the concerned Parties and non-Parties, without triggering a confrontational judicial or quasi-judicial procedure. This may prove to be attractive to States. Arguably, the advisory procedure offers a cheaper way forward than recourse to judicial or arbitral proceedings. One could assert that the advisory procedure is a conciliatory way to prevent a dispute, and to prevent environmental damage⁸⁰ or, as expressed by some former judges, it is a form of ‘advisory arbitration’.⁸¹ Indeed, the engagement of the IC in facilitating a solution among the Parties makes of the advisory procedure a new development among non-compliance procedures. The Cijevna/Cem River advisory procedure is a clear example of this. The Parties consented to participating in the procedure and are currently working together to prevent environmental damage in this watercourse.

If the Parties fail to reach an agreement through the advisory procedure, they may resort to other means of dispute settlement. Most MEAs are clear in recognizing the independence of the non-compliance procedure from dispute settlement processes.⁸² For example, the UNECE Water Convention recognizes that the procedure to facilitate and support implementation and compliance shall be without prejudice to Article 22 of the Convention on the settlement of disputes.⁸³ The next question is whether the advisory opinion rendered by the IC has any value in a further judicial or non-judicial proceeding. To contextualize this point, let us go back to the Cijevna/Cem River advisory procedure, where the IC was unable to confirm or deny the likelihood of cumulative transboundary impact caused by the planned hydropower plants.⁸⁴ What would have been the legal consequence of a determination confirming cumulative environmental impact? A first point to remember is that non-compliance procedures, even if some of them entail sanctions, are not judicial processes. Therefore, the principle of res judicata cannot be invoked as a basis to request a tribunal not to exercise its jurisdiction over a dispute.⁸⁵ However, the findings of the IC can assist a judicial/arbitral organ in adopting an interpretation of the treaty and may provide elements of fact-finding.⁸⁶ For example in the Diallo case, the ICJ ascribed great weight to the interpretation of the International Covenant on Civil and Political Rights (ICCPR) adopted by the Human Rights Committee, as an independent body that was established specifically to supervise the application of the ICCPR.⁸⁷ Yet the facilitative nature of the advisory procedure differs from the advisory function of a judicial body. The goal of judicial advisory proceedings is delivering an authoritative statement of law on a legal question requested by an entity (international organizations, States or NGOs⁸⁸) for the fulfilment of its obligations and/or functions. An advisory opinion constitutes a source of international law and entails legal effects for the requesting entity and the legal system.⁸⁹

5.3.4.2 Tailored Technical and Legal Advice

One of the most crucial roles of a CC is identifying the main reasons why a Party is failing to implement its obligations under an MEA. The reasons for non-compliance can go beyond a problem with political will. Instead, a Party might be in the position of lacking the technical and financial capacity to implement its obligations. For these reasons, States need an IC from which they can request technical and legal advice without being accused of non-compliance by another Party, the public or the CC. Submission, reviewing and self-trigger procedures generate a certain level of stigmatization against the concerned Party, which may help tackle the absence of political will to implement an MEA. However, despite the recommendations that may follow these procedures, States may be reluctant to implement them because of their confrontational and punitive nature.⁹⁰ As underscored by Judge Buergenthal, ‘it is easier for governments to comply with advisory opinions because such rulings do not stigmatize them’.⁹¹

In this context, the advisory procedure, as envisaged in the UNECE Water Convention, goes beyond the traditional role of ICs by offering a procedure to those Parties with the political will to implement an MEA but with a lack of capacity to do so. Under the advisory procedure, a Party can have recourse to the IC to expose its situation and to request financial, technical or legal advice. On this point, the IC has underscored the benefit of the Committee’s interdisciplinary composition.⁹² As explained, the outcome of an advisory procedure entails recommendations aimed at enhancing domestic regulatory regimes or facilitating technical and financial support for the requesting Party. Furthermore, the IC can bring to the attention of the CoPs/MoPs the financial and technical difficulties of a Party with the aim of seeking support among other Parties.

5.3.4.3 Assessing the Utility of Employing an Advisory Procedure in other MEAs

As discussed, the advisory procedure has emerged within an IC of an MEA governing the management of international watercourses and lakes. Yet, this procedure can be easily adapted for use under other MEAs addressing the management of common/shared resources or addressing a common concern. The inclusion of a similar procedure in other compliance mechanisms could foster a more active engagement in the implementation of the related treaties and ensure the prevention of environmental damage and health risks. This improvement could be made in existing compliance mechanisms among MEAs by vesting in them the power to conduct an advisory procedure. For example, the CC of the Protocol on Water and Health adopted in 2014 a consultation process to facilitate and support implementation by issuing technical, scientific and legal advice.⁹³ Like the advisory procedure of the Water Convention, the consultation process is not a compliance review procedure and, thus, it doesn’t establish whether a Party is non-compliant.⁹⁴ The consultation is requested by a Party or by invitation from the CC.⁹⁵ To date, the CC of the Protocol on Water and Health has dealt with seven consultation processes.

The second pathway of opportunity for introducing an advisory procedure is in the context of negotiations on compliance mechanisms of new multilateral treaties. This chapter underscores three of them:

• BBNJ Agreement.⁹⁶ The draft text of the international legally binding Instrument on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ), would establish in Article 53 ter an Implementation and Compliance Committee to facilitate and review the implementation of the agreement. The modalities and procedures would be adopted during the first CoP.⁹⁷ In this scenario, the advisory procedure could be a function considered by the CoP when establishing the Implementation and Compliance Committee. It should be noted that the draft text includes a proposal for the CoP to request advisory opinions from the International Tribunal for the Law of the Sea.⁹⁸ Establishing advisory procedures to be conducted, respectively, by a non-compliance body and a judicial body may complement authoritative statements of law with tailored facilitative advice for implementing the treaty.

• Plastic pollution Treaty. In March 2022, the United Nations Environment Assembly (UNEA) decided to convene an intergovernmental negotiating committee to develop a binding instrument on plastic pollution.⁹⁹ Despite its early stage of development, it is probable that the Intergovernmental Negotiating Committee (INC) will be considering the appropriate mechanisms to address compliance with the treaty.¹⁰⁰ Stakeholders have expressed the importance of adopting an instrument that takes into account countries’ different capacities, as well as their need for financial and technical assistance.¹⁰¹ In this context, the INC might draw on the advisory procedure under the Water Convention.

• Pandemic Treaty. In December 2021, the World Health Organization agreed on establishing an intergovernmental negotiating body to negotiate a binding instrument to strengthen pandemic prevention, preparedness and response.¹⁰² Given the preventive nature of the upcoming instrument, an IC or similar body will be useful to implement the treaty.¹⁰³

In sum, the advisory procedure established in the UNECE Water Convention and other MEAs constitutes a truly facilitative non-compliance procedure capable of offering advice to tackle technical and financial implementation issues, to prevent environmental damage and to help prevent further disputes. The advisory procedure could prove to be an efficient tool in the implementation of multilateral treaties addressing common concerns or the management of shared resources.

5.4 Conclusions

This chapter has explored the potential of the advisory procedure in CCs by drawing on the advisory procedure employed by the IC of the UNECE Water Convention and recent experience with this procedure. The chapter has highlighted the benefits of non-confrontational and non-punitive NCMs and procedures. While most of these procedures can be useful to address the lack of political will to implement MEAs, it is true that they may be more limited in their contribution to addressing other compliance issues, such as lack of capacity or the emergence of a dispute. The chapter draws the following conclusions on the advisory procedure:

1. (1) The tailored and technical advice offered through an advisory procedure stands out as one of the unique features of the advisory procedure as compared with the outcome of a submission, reporting or self-triggered procedure. This feature may prove to be attractive for States willing to implement an MEA but struggling to do so for technical or financial reasons. Moreover, the interdisciplinary composition of non-compliance bodies enables the production of advisory opinions with technical and legal recommendations, tailored to the specific needs of the requesting Party.

2. (2) The advisory procedure offers a conciliatory avenue for the prevention of potentially long-standing and costly disputes before judicial or arbitral bodies. Relying on the principle of cooperation, the concerned States can request an advisory opinion from the IC to obtain guidance on how to implement treaty obligations in respect to a particular project or a situation that may entail environmental harm. On the one hand, the advisory procedure seeks to prevent a dispute, and on the other, it offers alternatives to prevent further damage.

3. (3) The non-inquisitorial nature of the advisory procedure fosters a more facilitative approach across MEAs. Bearing this in mind, existing CCs should consider the establishment of an advisory procedure, adopting a similar architecture to that in the UNECE Water Convention. Furthermore, the advisory procedure could be considered for inclusion in designing compliance and implementation mechanisms in the course of the negotiation of new treaties such as the BBNJ Agreement, the Plastic Pollution Treaty or a new treaty on pandemic preparedness and response.

6 State-to-State Procedures before Environmental Compliance Committees: Still Alive?

Justine Bendel and Yusra Suedi

6.1 Introduction

Many multilateral environmental agreements (MEAs) have established committees that monitor compliance and/or facilitate State parties’ implementation.¹ They offer an alternative to traditional judicial dispute settlement and are designed with a slightly different purpose in mind. One of the ways they are different from international courts is the way in which a procedure can be triggered.² Indeed, there are many ways such committees may be triggered to take action: the committee could act proprio motu (committee trigger), or any State party could trigger the committee with respect to its own compliance or implementation (self-trigger) or sometimes an NGO or member of the public can trigger the committee (third-party trigger). However, most compliance committees also have a more ‘traditional’ way to initiate a procedure before them, reminiscent of a judicial procedure: a State party may seize the committee concerning the compliance or implementation of another State party.³ This type of trigger has only been used a handful of times across the existing environmental committees that provide for it, most famously in the context of the Aarhus Convention. However, this trigger has deliberately not been included in the list of the various options triggering the Paris Agreement Implementation and Compliance Committee (PAICC). It is also interesting to see that, in the human rights context, the UN Convention on Racial Discrimination’s Committee has been triggered only twice.

One may ask: What is to be achieved through State-to-State triggers that is not achieved through other triggers? Why should they exist? Arguments for their existence and added value are twofold. The main objective of State-to-State triggers is to give responsibility to States themselves to make sure that every party implements the treaty, and to reinforce norms as community interests. Many rules contained in MEAs are arguably obligations erga omnes partes, which can and should be implemented and complied with by all parties to the treaty. While compliance committees are tasked with monitoring States’ compliance with such obligations, State-to-State triggers reflect States’ primary role in their implementation and compliance. The existence of State-to-State triggers is also justified as it creates another means, alongside other types of triggers, to implement and ensure compliance with a multilateral treaty. Having multiple ways to access the compliance mechanism of a treaty is beneficial, as more actors can be involved in the compliance process.

As a result, this chapter explores the following question: What are the challenges and obstacles of State-to-State triggers that can explain their sparse use? Focussing on compliance committees for MEAs, we identify two types of challenges faced by State-to-State triggers: challenges related to the perception and behaviour of States vis-à-vis State-to-State triggers (Section 6.3) and challenges related to the institutional design and procedural mechanisms of State-to-State procedures (Section 6.4). While the methodology is doctrinal in essence, we also conducted interviews with three negotiators of the Paris Agreement, in order to better understand the process that led to the creation of the PAICC. We also refer to examples in the human rights context where relevant. Before delving into the challenges identified, we first explain how State-to-State triggers were established (Section 6.2.1) and describe the instances in which they have been used (Section 6.2.2).

6.2 Overview of State-to-State Compliance Procedures

In order to understand the challenges faced by State-to-State triggers, we first explain the negotiation process leading up to their creation and present the instances in which they have been employed.

6.2.1 Establishment

The inclusion of State-to-State triggers as a means to encourage compliance with MEAs has historically been a contentious matter. Indeed, there has long been an ideological conflict within the international community about the best approach to guarantee States’ compliance with their international environmental obligations. The adversarial approach, on one hand, is typically where one State will ‘sue’ another for non-compliance in a confrontational manner. The State-to-State trigger is representative of this approach. The facilitative approach, on the other hand, involves ‘non-confrontational means to persuade State parties into compliance, through technical and financial assistance, aid with reporting requirements, advice, technology transfers and capacity building’.⁴

Such tension is reflected in the negotiation processes to establish a number of MEAs. During negotiations on the compliance committee for the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention), for instance, Australia argued that ‘a right to raise the performance of other parties would not be consistent with the consultative, non-confrontational nature of the mechanism’,⁵ and that ‘compliance should not be secured through threats or by creating a mechanism equipped with strong enforcement procedures’.⁶ The draft decision from the ad hoc Legal Working Group that established the compliance mechanism was a matter of lengthy and heated debate,⁷ resulting in a consensus that was not satisfactory to all States.⁸ Similarly, provisions on the State-to-State trigger in MEAs such as the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam Convention) and the 2001 International Treaty on Plant and Genetic Resources were enclosed in square brackets during the drafting process ‘as no agreement [had] been reached on this issue between the Parties’.⁹

The tension was particularly high in the context of the Paris Agreement. This was considered to be more ‘more sensitive’¹⁰ than other MEA negotiations due to the high political implications, the focus on the complex matter of climate change and a wide range of issues covered in the Agreement (such as mitigation, adaptation, finance, transparency and technical support). The mere inclusion of a compliance mechanism was difficult to negotiate in the first place, but certain States managed to convince the majority that the inclusion of a compliance committee would add value and guarantee accountability to the world.¹¹ However, reluctance remained regarding the acceptable ways to trigger such a committee. While many were initially willing to retain only a self-trigger,¹² a committee trigger was eventually added.¹³ Unfortunately, State-to-State triggers were ‘shut down immediately by some parties’.¹⁴ Deemed ‘impossible to include’ and ‘something parties would never agree to’, this proposal was abandoned by its negotiators in favour of other ideas that could be more readily accepted.¹⁵

Today, most MEAs contain many features that lean towards a facilitative rather than an adversarial approach. This facilitative approach is the essence of environmental compliance procedures, within which more adversarial State-to-State triggers can exist. While some may believe that an adversarial approach to non-compliance is more efficient, most opine that the facilitative approach characterising compliance procedures is ‘better suited to promoting compliance’ in this context, particularly as it is ‘easier to sell to states’.¹⁶ It can therefore be said that the facilitative approach is at the core of the existence of compliance procedures.¹⁷ However, compromises have been reached in some MEAs to allow a State party preferring a more adversarial approach to seize the compliance committee against another State party if so desired. When featured, the State-to-State trigger has therefore found itself incorporated as a concession; a square peg in a round hole.

6.2.2 Practice

This context indicates why the facilitative approach has become the preference in the majority of MEAs. To date, only three compliance committees have been triggered for review by a State against another State: the Aarhus Compliance Committee (twice), the Espoo Implementation Committee (nine times) and the Kyoto Protocol Facilitative Branch (once).

The Aarhus Convention Compliance Committee saw its first State-to-State procedure in 2004 when Romania triggered a non-compliance procedure against Ukraine, in relation to the Bystre Canal project in the Danube Delta.¹⁸ It alleged that the Ukrainian authorities had not complied with the obligations of public participation and had not let various local and international NGOs participate throughout the planning of the project. The second procedure triggered before the Aarhus Convention Compliance Committee was submitted by Lithuania against Belarus in 2015 with regard to the construction of a nuclear power plant in Belarus. Lithuania claimed that Belarus had denied the right to access detailed information of citizens to Lithuania during the preparatory and project implementation phases of the construction of the nuclear power plant.¹⁹

The Espoo Implementation Committee has seen nine procedures initiated by a State party against another, making it the most successful to date. They are all related to large projects with transnational effects, such as nuclear power plants, oil and gas projects, mining, hydropower plants or modifications to river waterways.²⁰ In these cases, the triggering parties argued that the transboundary environmental impact assessments were not carried out in accordance with the Espoo Convention.

Another interesting procedure was triggered before the Kyoto Protocol Facilitative Branch in 2006 by South Africa. In this case, South Africa made a submission, in its capacity as Chairman of the Group of 77 and China and on their behalf, about State parties’ non-compliance with Article 3.1 of the Kyoto Protocol.²¹ The alleged non-compliance concerned the submission of national progress reports, as several countries had not submitted theirs six months after the set deadline.

There is further evidence of a sparing use of State-to-State procedures even beyond MEAs. For instance, before the UN human rights treaty bodies, the first inter-State communications ever to be submitted both occurred in 2018 before the Committee on the Elimination of Racial Discrimination (CERD).²² The CERD dealt with an inter-State communication submitted by Qatar on 8 March 2018 against Saudi Arabia and the United Arab Emirates (UAE), and an inter-State communication submitted on 23 April 2018 by the State of Palestine against Israel.

There are several reasons that could explain the very sparing use of State-to-State triggers, despite their appearance in the guidelines or rules of procedure of all compliance committees. We identify two types of challenges: challenges related to the perception and behaviour of States vis-à-vis State-to-State triggers and challenges related to the institutional design and procedural mechanisms of State-to-State procedures.

6.3 Reluctance of States to Use Compliance Procedures

Although it is not within the scope of this chapter to empirically assess why States are reluctant to use State-to-State triggers, we identify two circumstances that may make State-to-State compliance procedures seem undesirable to States. First, State-to-State compliance procedures can be perceived as hostile mechanisms by States (Section 6.3.1). Second, States may lack the motivation to defend communal interests through State-to-State triggers (Section 6.3.2).

6.3.1 Hostile Perception of State-to-State Compliance Procedures

The principal reason States may be discouraged from using State-to-State procedures is the adversarial and hostile perception of those State-to-State triggers, as mentioned in Section 6.2.1. This hostile perception means that States may think that triggering a compliance procedure against another State may be perceived as an escalation of tensions in their diplomatic relations. This is because the process of one State complaining about another State before a third party (judicial, quasi-judicial or non-judicial) is perceived negatively in international relations. Indeed, while the judicial avenue is theoretically an equal alternative to other forms of peaceful dispute settlement provided in the UN Charter,²³ it tends to be a last resort in practice. Certain MEAs or international human rights conventions even provide that a court (most commonly, the International Court of Justice (ICJ)) may only be seized once negotiations have been exhausted.²⁴ This indicates that States may turn to a third party when they are unable to communicate successfully between themselves, or, worse, when they have reached a political ‘boiling point’ or deadlock.²⁵ In the context of human rights compliance committees, notable examples include the Israeli–Palestinian dispute before the CERD as part of a decades-long historical conflict with deadlocked negotiations.²⁶ The other dispute before the same committee between Qatar and the UAE is also in the context of an important political conflict between these two countries which also made its way onto the ICJ’s docket.²⁷

Tensions that lead to the triggering of a State-to-State procedure escalate more easily between neighbouring countries. In addition to the two disputes between neighbouring countries before the CERD, all procedures before the Espoo Implementation Committee have involved neighbouring States, where projects have had clear transboundary effects. Obligations around transboundary environmental impact assessments lend themselves naturally towards a bilateral and adversarial conflict, as they are easily ‘bilateralisable’. For instance, in 2019, Montenegro started a procedure against Albania regarding the ongoing build of a small hydropower plant on the Cijevna River, which is shared with Montenegro. It alleged that Albania had not considered the potential adverse impacts of the project on Montenegrin territory and people.²⁸ This is a clear case of a ‘bilateralisable’ and adversarial problem arising within a multilateral treaty, where Montenegro is using similar rhetoric and seeking a similar outcome to what it would use, and seek, in a judicial procedure.

Any compliance arrangements in general may already be viewed as hostile, discouraging States from setting ambitious environmental targets or even joining the MEA altogether.²⁹ However, State-to-State triggers would naturally be seen as particularly undesirable. One participant recalled that ‘parties are very reluctant to be pointed the finger at. They want to avoid that’.³⁰ This could, at least partly, be due to the disclosure of sensitive information or the attraction of potentially negative public opinion during proceedings.³¹ It could also be due to costs associated with such proceedings where relevant. Another reason could be the risk of a ‘boomerang effect’, whereby the initiating State may be under closer scrutiny from the alleged non-complying State, who is looking for retaliation. The latter may become vindictive and look into whether the triggering State is also complying. Such a ‘boomerang effect’ could also take place with respect to another MEA, as there are chances that both States are parties to multiple treaties. States could even bring other issues beyond the scope of the MEA in question to the forefront. The committee would be ‘open to misuse’,³² creating a space for political issues other than the compliance with the treaty in question. However, such risks can and will be mitigated by the committee itself, which will decide on its jurisdiction and the scope of its work. Unfortunately, this was not a sufficient guarantee in the negotiations of the PAICC, possibly because of the high political stakes under the Paris Agreement.

The hostile perception of State-to-State triggers could also explain why the dispute settlement mechanisms featured in MEAs are rarely used.³³ Indeed, a few MEAs feature a clause giving State parties the option to resort to the ICJ or possibly arbitration if a dispute arises about the interpretation, application of or compliance with the relevant convention.³⁴ Therefore, in theory, a State could resort directly to judicial bodies as opposed to non-compliance procedures on a matter of another State’s non-compliance with their shared convention. These procedures are separate.³⁵ However, ‘there appears to be widespread avoidance of resort to third-party dispute resolution’.³⁶ This may in part be due to the fact that most non-compliance is due to capacity issues as opposed to the legal interpretation of a provision in an MEA.³⁷ It is however mainly due to the confrontational nature of dispute settlement, requiring the existence of a dispute where States ‘hold clearly opposite views concerning the question of the performance or non-performance of certain international obligations’,³⁸ with one party’s claim being ‘positively opposed’ by the other.³⁹ It is also likely due to the binding nature of dispute resolution procedures, disliked by States who prefer more flexibility with regard to their environmental commitments.⁴⁰

6.3.2 Lack of Motive to Defend Communal Interests

Many of the obligations contained in MEAs are arguably obligations erga omnes partes. This means that a State party owes such obligations towards all the other States parties to the same treaty, due to the treaty’s protection of collective interests. Therefore, all State parties have their own interests on the one hand and communal interests on the other hand.⁴¹ By ratifying those treaties, they have agreed that the protection of environmental rights is worth joint efforts. The pursuit of this ‘common good’, however, does not seem to have inspired many States to date. They may lack motivation to pursue such proceedings due to both the absence of perceived personal gain and the novelty of the practice itself. Indeed, from a jurisdictional perspective, States have a legal interest in safeguarding community interests before a judicial body or a compliance committee, if such obligations are erga omnes partes. However, international jurisprudence has recently distinguished between specially affected States – directly and tangibly impacted by the breach of an obligation – and non-specially affected States that may be concerned about ensuring respect for the erga omnes partes obligation but are not directly and tangibly impacted by its breach.⁴² While States occasionally demonstrate altruism in international relations,⁴³ they may generally hesitate to start a procedure against another State if they are not specially affected by the breach in question. This may particularly be the case as the practice is quite novel.

As much as this can explain some of the reasons States are reluctant to use State-to-State compliance procedures, it does not make such procedures redundant. Contrary to the common perception that State-to-State proceedings are hostile, it can be argued that they were designed to allow for collegial co-operation and solidarity between States. Indeed, a State-to-State compliance procedure is communal in nature.⁴⁴ Even if the procedure itself opposes two parties, the purpose of the procedure has a larger communal objective. In this sense, it is possible to view such procedures not as hostile, but as co-operative, aspiring towards a ‘common good’.

On one hand, there are many instances where the initiating State is specially affected by another State’s non-compliance, and therefore communal obligations can be ‘bilateralisable’ such as the case of the Espoo Convention on Transboundary Environmental Impact Assessments. On the other hand, there are instances where a State can be non-specially affected by another State’s non-compliance with communal obligations, such as in the case of the Kyoto Protocol. In both types of cases, a shift in States’ understanding of State-to-State procedures may be used as is necessary: individual adversarial procedures can be conducted for the defence of community interests. Although the more bilateral nature of a State-to-State procedure may be at odds, from the perspective of State parties, with the communal spirit of the treaties under review, they are not incompatible.

6.4 Procedural and Institutional Challenges

Since State-to-State compliance procedures are adversarial in nature, opposing two States, the type of procedural rules applicable become central to the conduct of such procedures. Certain well-established procedural principles developed in the judicial context become essential to the State-to-State compliance procedure, such as questions of jurisdiction (Section 6.4.1), evidence (Section 6.4.2), expertise (Section 6.4.3), independence and impartiality (Section 6.4.4), participation and transparency (Section 6.4.5) and outcomes (Section 6.4.6). This section will argue that the design and practice surrounding these identified procedural and institutional features of State-to-State triggers can contribute to their scarce use by States.

6.4.1 Jurisdiction

Questions such as when a compliance committee should pursue a State-to-State procedure are worth exploring, as they show that it is not only States that can be the reason why State-to-State procedures do not proliferate, but it is also committees themselves that can prevent procedures from being heard. This means that even when State-to-State triggers are initiated, the process can be impeded by a hesitant committee.

The case submitted by South Africa to the Kyoto Protocol Facilitative Branch – one of the two branches of the Protocol’s compliance committee – shows that the committees themselves may not be as familiar as expected in dealing with State-to-State compliance procedures. Potential reasons for this may be that they have so little prior experience. In this case, as soon as the submission was not exactly in line with the set procedures, the committee decided to end the procedure altogether.

As mentioned, the submission by South Africa was made, on behalf of the Group of 77 and China, against various parties for failure to communicate national reports. The Facilitative Branch dismissed the submission on procedural grounds. Indeed, two questions needed to be answered: Can a party submit on behalf of a group, and can a party submit against multiple other parties? These questions were not answered clearly in the Branch’s rules of procedures. Therefore, the committee decided the procedure could not continue. In only two instances, concerning Slovenia and Latvia, the Branch closed the procedure, as these two countries had in the meantime complied with their obligations, making the compliance procedure redundant.⁴⁵

The fact that the Branch did not engage with the merits of the claim brought by South Africa shows a strict application of the rules of procedures, despite there being easily justifiable grounds to continue the procedure. Indeed, the committee decided that South Africa did not name the States against which it was making its submission, but South Africa stated clearly that those States who were six months late in submitting their reports were the object of the submission, and sent the submission to the relevant fifteen States. Therefore, despite the fact that it did not clearly name the parties against which it was initiating the procedure, it was in fact clear who it was aimed at. This level of respect for the procedural rules may be seen as contrary to the Kyoto Protocol’s objective to, inter alia, ‘[c]ooperate with other … Parties to enhance the individual and combined effectiveness of their policies and measures’.⁴⁶ The decision shows great commitment to the wording of the rule, which could be explained by a lack of confidence on the part of the committee in its own ‘jurisdiction’ to rule on such matters. It also shows an unwillingness on the part of the committee to take matters into its own hands. An explanation for this behaviour may be that the committee does not have a traditionally ‘judicial’ mandate as do international courts and tribunals, and may have hesitated to take action without such traditionally understood ‘judicial’ legitimacy. This may contribute to an unclear institutional framework for the use of State-to-State procedures.

6.4.2 Evidence

Another procedural hurdle contributing to the scarce use of State-to-State triggers is the requirements for and handling of evidence during a State-to-State procedure. State-to-State triggers in MEAs allow for a State party to seize another State party before the compliance committee on the grounds of concern alone. In the 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter the party must have an interest where it is affected or likely to be affected.⁴⁷ In the 2000 Cartagena Protocol on Biosafety and in the Rotterdam Convention it must be ‘directly affected or likely to be directly affected’.⁴⁸ The Basel Convention Compliance Mechanism is the most demanding in this respect, requiring a specific, bilateral relationship between the two parties involved in order to be triggered.⁴⁹ In all other MEAs, however, State parties may trigger this procedure without having to prove involvement or interest.⁵⁰ The benefit of this is that it facilitates the ability for States to easily trigger the procedure.

However, non-specially affected States may have more difficulty obtaining evidence that a certain State has violated an obligation in their shared convention. Indeed, States are still required to provide evidence of their claim in the form of an informational report. However, there are two obstacles to fulfilling this requirement.

First, it is perhaps difficult to imagine how a State would substantiate its claims in such a report if it were not directly affected. It is easier to substantiate claims and provide information for a matter that is of direct relevance to a State, as more information about the effects of the non-compliance is in the country itself. This closely mirrors traditional judicial inter-State disputes before international courts and tribunals.

Second, it is generally difficult for State parties to be aware of the level of compliance of other States. This would not be as much of a problem before international courts and tribunals because, at the ICJ for instance, proceedings involving erga omnes partes obligations have tended to be high-profile cases where evidence has already been collected by UN fact-finding missions or media outlets.⁵¹ Therefore, even if the effects of the violation could not be measured on the State’s territory, it could still obtain enough evidence to support its claim.⁵² States’ compliance with MEAs, however, does not garner the same level of publicity.

It is therefore more difficult for States who are not directly affected to corroborate their claims before compliance committees. This could explain why, in practice, only specially affected States have resorted to State-to-State triggers to date.⁵³ Regarding the attempt made by South Africa before the Kyoto Protocol Facilitative Branch, its submission was also rejected because it ‘was not supported by corroborating information and did not substantiate how the question related to any of the specific commitments of the relevant parties under the Protocol’.⁵⁴

6.4.3 Expertise of Members of Compliance Committees

State-to-State procedures would also benefit from clearer rules surrounding the appointment and expertise of compliance committee members, if their use is to be enhanced. The range of expertise needed in order to be able to sit on a compliance committee is a point of contention, as the technical nature of a compliance committee may require non-legal skills, yet legal knowledge is essential to make adequate decisions. In order to make a decision on compliance, compliance committees need to rely on both legal and scientific or technical knowledge. This is often reflected in the rules, which might say for example that members ‘shall have expertise relating to the subject matter of the Convention in areas including scientific, technical, socio-economic and/or legal fields’, in the case of the Basel Convention Implementation and Compliance Committee.⁵⁵ Similar language is used for the PAICC.⁵⁶ This is an advantage that compliance committees may have over international courts, as the latter are often criticised for their lack of ability to handle scientific evidence.⁵⁷ One of the challenges of international adjudication, especially in an environmental context, is how judges handle complex facts, especially when they involve complex science, and how that affects their decision-making.⁵⁸

However, it is not always clear whether the requirements concerning the legal and/or scientific skills of the committee members are fulfilled in practice. Before the Montreal Protocol Implementation Committee, member States of the Montreal Protocol appoint their representatives. This means there is no requirement to co-ordinate between member States, and therefore no guarantee that the committee itself will be composed of individuals with balanced and complementary expertise.⁵⁹ Even in the human rights context, the CERD stated explicitly in the Qatar v Saudi Arabia case that it initially could not take any decisions due to ‘the legal complexity of the issues broached and a lack of resources’.⁶⁰

6.4.4 Impartiality and Independence of Members of the Compliance Committees

Another difficulty in relation to the members of the compliance committees contributing to the limited use of State-to-State triggers relates to their impartiality and independence. An important procedural safeguard that ensures a fair procedure is to separate the relationship between the individual members and the State(s) of which they are citizens. Guaranteeing that the members are not influenced or manipulated by outside forces, especially by potential parties to a compliance procedure, is a key element to achieving a fair outcome. It is a well-established rule in the judicial context and has also been integrated into the provisions and rules governing most compliance committees.⁶¹ The reason why the two notions of impartiality and independence are especially important in State-to-State compliance procedures is that the role of the compliance committee is more akin to that of an arbiter between two parties in such a procedure. This role requires the committees to show fairness and equality in the process, and this is ensured, inter alia, by having impartial and independent members.

In order to ensure independence, a lot of compliance committees require that their members act in their personal capacities, and not as representatives of their member States.⁶² Indeed, once they have been elected, often according to rules of geographical and/or gender representation, they need to be able to decide in their own name, separately from the States that nominated them. An example of how to operationalise the concept of impartiality can be seen in the context of the PAICC, where ‘[m]embers and alternate members shall perform any duties and exercise any authority in an honourable, independent, impartial and conscientious manner’,⁶³ and they have to confirm in writing that they will do so at the beginning of their mandate.⁶⁴ They also have to ‘disclose immediately any interest in any matter under discussion before the Committee that may constitute a real or apparent, personal or financial conflict of interest or that might be incompatible with the objectivity, independence and impartiality expected of a member’, which then prevents them from being involved in matters related to the issues they disclosed.⁶⁵

However, not all compliance committees are structured in the same way, and some important committees still have their members sit as representatives of parties, such as the Montreal Protocol and CITES.⁶⁶ When rules on impartiality and independence are not as clear, it can negatively affect the functioning of the committee. For instance, issues may arise when a member of the committee has a duty, as a civil servant, to relay information to its State.⁶⁷ This can impact the procedures and decision-making processes of the committee, as States before the committee may not feel free to share all necessary information for the committee to decide in the best possible way.

These guarantees of impartiality and independence may not be as essential in other roles performed by the compliance committees, especially as facilitators in compliance processes. However, when they act as arbiters in adversarial procedures, these guarantees are necessary and when they are lacking, this seriously undermines the State-to-State compliance procedures.

6.4.5 Participation and Transparency

Another procedural challenge in State-to-State procedures is the transparency of proceedings from the moment a State triggers the procedure against another State. While the State whose compliance is being called into question fully partakes in the proceedings and has the right to be heard, the same cannot systematically be said for the State who initiated the procedure. Typically, the latter State will be excluded from the procedure going forward and will have no opportunity to take stock of matters with which it was initially concerned. In fact, meetings between the compliance committee and the party whose compliance is in question are closed to the public.⁶⁸ This is possibly favourable towards the party in question who can avoid public scrutiny, potential embarrassment and the divulging of sensitive information. However, it does an injustice to the State triggering the procedure who has expressed concern.

This is particularly so in instances whereby the State triggering the procedure is required to be affected or have an interest of some sort. For instance, regarding the 2001 Stockholm Convention on Persistent Organic Pollutants, one author has observed a contradiction between the fact that a party must be particularly affected in order to trigger the procedure – reflective of a more ‘traditional, bilateral, state-to-state dispute approach’ – but cannot participate in the consequent proceedings.⁶⁹ Similarly, transparency before the Basel Convention has been described as ‘remarkably poor as far as … the Party triggering the mechanism [is] concerned’.⁷⁰

Before international courts and tribunals, State litigants are given equal rights of participation. Third States making requests for intervention are likewise fully integrated in written and oral proceedings if their request is granted.⁷¹ Transparency is also an important feature of proceedings before international courts and tribunals. Before the ICJ, for example, written parties’ submissions may be made public on or after oral proceedings with the parties’ consent,⁷² while oral hearings are made open to the public⁷³ and streamed live online.⁷⁴ At the International Tribunal for the Law of the Sea (ITLOS), written pleadings of the parties are publicly accessible even before oral pleadings commence.⁷⁵ The World Trade Organization (WTO) Dispute Settlement Mechanism’s contrasting practices (confidential submissions by parties and closed oral hearings) have been widely criticised, demonstrating the increasing importance that transparency yields in international law.⁷⁶ Generally, participation and transparency have become increasingly significant in international judicial processes.

Greater transparency and participation are certainly imaginable before non-compliance procedures,⁷⁷ without jeopardising their facilitative spirit. In the case of the 1987 Montreal Protocol on Substances That Deplete the Ozone Layer, for example, ‘[a]lthough [it] is based on facilitative and amicable principles, it also envisages principles of due process, such as notification, right to a fair hearing and impartiality, which are usually found in traditional dispute settlement mechanisms’.⁷⁸

6.4.6 Outcomes of State-to-State Compliance Procedures

The lack of clarity in the outcome that States can get from triggering such procedures may further discourage their use. Indeed, the political cost of triggering a compliance procedure may not justify such an uncertain outcome. The question States may ask is: What can they get out of a State-to-State compliance procedure? The answer to this question is twofold and can partly explain why State-to-State compliance procedures have not been popular so far.

First, the fact that the decisions are not final and binding renders the overall effect of the decisions weaker. Indeed, the decisions taken by compliance committees ‘generally do not possess any legally binding force. Even if a non-compliance procedure results in giving an appropriate response to non-compliance, such a response would still be of only a preliminary nature, because it is up to the Conference of the Parties to take a final decision’.⁷⁹ The decisions taken by compliance committees are mostly endorsed by the Conference of the Parties – the governing body of the treaty – but theoretically the latter could depart from the initial decisions, or only adopt a part of them. In many instances, the compliance committee can take some decisions that are facilitative in nature, but when more punitive measures have to be taken, or those with financial consequences, the Conference of the Parties is the body that will take this type of decision.⁸⁰ This is contrary to judicial decisions rendered by international courts and tribunals, which are binding and final.

Second, the range of options available to compliance committees is also uncertain, rendering the outcome less predictable. Some measures that can be decided upon by compliance committees may also not necessarily suit a State-to-State compliance procedure. Facilitative measures include providing advice and information about how to facilitate compliance and requesting special reporting or action plans from the non-complying party. These may not be the desired outcome of a State-to-State compliance procedure.

Some potential outcomes could be more suitable from the perspective of a State triggering a non-compliance procedure, such as a declaration of non-compliance or a suspension of specific rights under the treaty. For instance, in the case between Lithuania and Belarus concerning Belarus’ non-compliance with the Aarhus Convention, the Committee was able to conclude that Belarus had ‘failed to comply’ with a number of provisions of the Convention⁸¹ and therefore recommended that ‘the Party concerned takes the necessary legislative, regulatory and administrative measures and establishes practical arrangements’.⁸² This type of decision raises a number of questions pertaining to the law of State responsibility and the law of treaties, which have been the object of debate.⁸³ The lack of clarity on these points may contribute to a misunderstanding of the role of State-to-State compliance procedures.

In sum, it is not the case that compliance committees do not have the means to address State-to-State requests, as shown in the Aarhus Committee decision regarding Belarus’ compliance, but their role encompassing a broad range of actions may deter States from triggering them. Moreover, the frameworks within which compliance committees operate may prevent the latter from being more assertive in their decision-making, since they can only make recommendations that have to be adopted by the Conference of the Parties, which is constituted of States parties to the treaty in question. In other words, compliance committees may not have the tools necessary to make bolder decisions, as their overarching aim is still only facilitative – even in a more adversarial procedure – and their decisions are not final.

6.5 Conclusion

This chapter has sought to shed light on the reasons why State-to-State triggers are seldom used by State parties to MEAs. The reluctance of States is due firstly to the hostile perception of State-to-State compliance procedures and States’ lack of motivation to defend communal interests in the environmental context. A number of procedural and institutional challenges were additionally identified, such as issues with jurisdiction, evidence, participation, impartiality and independence, the expertise of such compliance committees, and the outcomes of proceedings.

The chapter observed that, regarding procedural and institutional challenges, international courts and tribunals have more rigorous and effective practices than compliance committees. Not only do international courts and tribunals perform better in many of these respects, but their decisions generate a higher level of authority in the international legal system.⁸⁴ Therefore, a combination of the efficient procedural practices of international courts and tribunals and their authority make them a more suitable venue for States to take environmental disputes. This can partly explain why there is an undeniable increase in inter-State environmental disputes before international courts and tribunals.⁸⁵

In an international legal system abundant with choices to keep States accountable to their obligations, compliance committees complement international courts and tribunals: compliance procedures provide a soft way to advise, encourage and influence States to comply with their obligations through assistance, aid and capacity building.⁸⁶ They are also helpful where State responsibility is difficult to establish in the environmental context. As Klabbers stated, ‘there is … often no real wrongfulness at issue – causality between behaviour and environmental degradation is frequently difficult to establish with the degree of precision that the law would insist on’.⁸⁷ Judicial procedures, on the other hand, through binding judgments, force States into compliance where State responsibility for environmental degradation can be established. Non-compliance procedures may also be viewed as instruments of ‘political rationality’ or a ‘symbolic exercise’ attempting to demonstrate effort to address an issue, while judicial enforcement embodies an ‘instrumental rationality’ attempting to achieve a desired result.⁸⁸ Both may be used concurrently⁸⁹ and both, in different yet complementary ways, push States to respect their international environmental obligations.

Where, in the midst of this, does this leave State-to-State triggers? They have certain judicial or quasi-judicial features, but the procedures they trigger under MEAs will take place before compliance committees rather than in international courts or tribunals. They are also part of a menu of other triggers designed to be facilitative and to provide support for capacity issues impeding States’ compliance with MEAs – but are perceived to be more confrontational as opposed to facilitative in their nature. State-to-State triggers therefore sit in between judicial and non-judicial procedures, and between facilitation on one hand and enforcement on the other.

There is, however, room for State-to-State triggers to evolve out of this supposed identity crisis. This could involve mirroring judicial procedures to align more with the practices of international courts and tribunals. This may not be appealing to States but would give more teeth to environmental obligations. Especially in light of current global environmental crises, we believe that this direction is the most desirable for the future of our planet.

7 Compliance with Science-Based Treaties

Rukmini Das

7.1 Introduction

International law, from its very origins, has developed without a central authority. Consequently, mechanisms for settling disputes or for ensuring compliance with international treaties have not been uniform or even coordinated. There is a wide array of courts and tribunals for judicial settlement of international disputes. There are also multiple non-judicial mechanisms to address treaty breaches or non-compliance, to interpret treaty provisions, or for dispute prevention. Judicial dispute settlement is thus not the only means of ensuring adherence to treaty provisions.

International legal agreements in recent times, especially those on various environmental or other technical or scientifically complex subject matters, envisage mechanisms for facilitating, promoting, and enforcing compliance with the commitments undertaken by the parties to these treaties.¹ Such mechanisms for assessing the compliance of parties with their obligations under that treaty have been referred to as non-compliance mechanisms (NCMs). Such NCMs are usually non-confrontational. As such they are markedly different from judicial dispute settlement, which is adversarial or confrontational by its very nature. For this reason, these NCMs may provide innovative alternatives to traditional dispute resolution procedures.²

Another kind of treaty body often seen in international instruments of this nature is the Scientific Committee. Scientific committees have varying names under different treaty regimes.³ This kind of committee, often with an advisory role, exists in treaty regimes related to, for example, environment and health, where scientific research is critically important to establishing agreed procedures and for effectively administering the treaty regime. Though not specifically established for the purposes of bringing about treaty compliance, these committees may make pronouncements that assist States to implement provisions of treaties or ascertain whether treaty obligations have been violated. This has the potential to go beyond mere application of treaty provisions, leading to the interpretation of certain (usually scientific) aspects of the treaty, thus overlapping to an extent with the powers of international courts or tribunals (ICTs) or avoiding recourse to them by pre-empting a dispute. The work of such committees and their impact is also examined in this chapter, along with NCMs and ICTs.

The focus on ‘science-based’ treaties in this chapter stems from the unique nature of the compliance issues that may arise in the context of treaties that govern complex technical or scientific subject matters. In the context of compliance with treaty obligations, a single treaty might provide for an NCM, provide for recourse to an ICT as a dispute settlement forum, and might also have a scientific committee whose role may involve indirectly interpreting treaty provisions. This chapter therefore analyses the various institutional contributions towards implementation and compliance of science-based treaties made through NCMs, other treaty bodies including scientific committees and dispute resolution before an ICT. The focus is on how best to address potential or actual treaty breaches, and the possible interactions among these different bodies.

Considering the evidently disparate natures of these processes – NCMs, the activities of scientific committees, and ICT dispute settlement – concerns exist with respect to the selection of members serving on the relevant bodies, their qualifications, expertise, and independence. Some of these concerns may arise out of a perception that scientific committees of a treaty would tend to be biased in favour of conservation or protection of the environment, while on the other hand, judges of ICTs may be considered less qualified to rule on matters involving scientific issues. The way in which judicial decision-making works, as distinct from a scientific body feeding its views into issues of treaty compliance, may also lead to particular questions of legitimacy of the outcome. It is however unclear which options may lend themselves to greater legitimacy. Would a judicial process with all its trappings of due process and reasoned decision-making, or the recommendation of a group of individuals with technical expertise in the relevant subject matter be more legitimate? Is it perhaps a combination of both?

This chapter takes a look at the various modes of enhancing the compliance of State parties with treaty obligations – whether with the aid of ICTs, scientific committees, or NCMs. In doing so, the chapter examines how procedures in NCMs, scientific committees, and international courts relate to each other and how they may operate in conjunction with one another. Scientific committees, on the one hand, and ICTs, on the other, are not presented as two dispute settlement choices emanating from a fork-in-the-road clause. Their spheres of influence may operate independently of each other in the treaty system. They may also be arranged sequentially with a committee serving as a first step in efforts to clarify facts about obligations and facilitate compliance, or to address a difference before it becomes a dispute.

A question that arises in this context is whether a judicial body should decide a case in the situation where there exists an expert scientific body under the relevant treaty, such as the International Whaling Commission (IWC) or the Commission on the Limits of the Continental Shelf (CLCS) under the UN Convention for the Law of the Sea (UNCLOS). Should an ICT necessarily defer to a competent scientific body, or can it decide not to rule on the issue?

It could be argued that in the Whaling case,⁴ the definitive assessment of Japan’s actions should have been undertaken by the Scientific Committee of the IWC, a body truly competent to do so.⁵ Similarly, in the Bay of Bengal delimitation case, the International Tribunal for the Law of the Sea (ITLOS) determined that it was able to delimit the continental shelf between the parties in the area beyond 200 nautical miles (‘nm’) from the respective States’ coasts, notwithstanding the role of the CLCS in issuing recommendations to States regarding the outer limits of the continental shelf.⁶ The International Court of Justice (ICJ) adopted a similar approach in Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles.⁷ In this context it is useful to remember the words of Arbitrator Wolfrum in the Chagos arbitration, in the context of leaving matters of scientific debate to scientists – ‘lawyers can do nearly everything’.⁸ It is clear from the jurisprudence, and it is also the author’s opinion, that a judicial body is well within its jurisdictional limits to decide a legal dispute having scientific aspects.⁹ It is indeed a fulfilment of its judicial function.

This chapter first examines NCMs (Section 7.2) and scientific committees (Section 7.3) in a range of treaties that cover environmental or other issues of a scientific character. This is followed by an examination of reference to ICTs for dispute settlement in the context of violations of treaties that also have an NCM alternative or a scientific committee making pronouncements on overlapping issues (Section 7.4). Thereafter, the chapter engages in a further discussion with specific case studies involving the crossing of paths between ICTs and certain scientific committees (Section 7.5). The chapter ends with concluding observations arising out of this analysis (Section 7.6).

7.2 Non-Compliance Mechanisms and Their Contribution to Compliance

This section provides an overview of compliance mechanisms (NCMs),¹⁰ their working methods generally and in specific contexts, the scope of their powers, and the nature of their pronouncements, that is, the outcome of the compliance procedure.

NCMs in the form of compliance committees (with some having wider powers) can often be found in treaties, conventions, or protocols relating to the environment, or scientific issues generally (such as technical aspects of health, food, and agriculture). These include, inter alia, the Aarhus Convention,¹¹ the Kyoto Protocol,¹² the Kiev Protocol,¹³ the London Protocol on Water and Health,¹⁴ the Convention on the Conservation of Antarctic Marine Living Resources,¹⁵ the Basel Convention on Transboundary Movement of Hazardous Wastes,¹⁶ the Paris Agreement,¹⁷ and the International Treaty on Plant Genetic Resources for Food and Agriculture.¹⁸

Non-compliance committees such as those under the above-mentioned conventions and protocols are generally established to review compliance under that protocol or treaty. An NCM commonly goes through the following steps. Review of a party’s compliance may be triggered usually in several ways: by a submission to the treaty committee from another party, or from the party itself concerning its own compliance, or by referrals from the secretariat of the treaty body, or by the committee itself. In case of the Aarhus Convention, submissions may even come from members of the public.¹⁹ Non-compliance committees are empowered and required to examine the question of non-compliance before them. However, they cannot issue binding decisions. Instead, these committees make ‘recommendations’ to the parties collectively, or to individual parties. The members of these NCMs are appointed in their personal capacity and are therefore expected to remain independent as opposed to being State representatives. This should depoliticise their work and give them greater independence and credibility. Unlike ICTs,²⁰ such NCMs tend to include in their membership technical or scientific experts as well as lawyers or diplomats.

Pursuant to an NCM’s recommendation, the final output is often a decision by the Conference of Parties to the treaty. Substantively, an NCM procedure could lead to financial or technical incentives to assist the party concerned in becoming compliant, or it could lead to penalties, sanctions, or suspension of privileges. Despite these possible consequences, the procedures before NCMs remain less adversarial and thus non-confrontational.²¹

One of the earliest NCMs can be seen within the framework of the Montreal Protocol.²² It may be triggered by any party, or the secretariat.²³ Once the NCM is invoked, the Implementation Committee, a standing body elected by the Meeting of the Parties, considers the situation of non-compliance, with a view to securing an amicable solution. Recommendations of this committee can be adopted as decisions of the Meeting of the Parties. The Kyoto Protocol’s comprehensive compliance mechanism includes an enforcement branch that determines non-compliance followed by a consequent course of action.²⁴

The compliance committee under the Aarhus Convention has been established pursuant to Article 15 of the Convention, which requires the Meeting of the Parties to establish ‘optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of the Convention’. On the recommendations of this committee, parties to the Convention adopt decisions on general issues of compliance as well as compliance by individual parties. Under the Escazú Agreement, a Committee to Support Implementation and Compliance is established²⁵ as a subsidiary body of the Conference of Parties to promote the implementation of the treaty and to support the parties in that regard. The nature and role of this committee is clarified in this provision itself, as ‘consultative and transparent’, ‘non-adversarial, non-judicial and non-punitive’, while it reviews compliance with treaty provisions and makes recommendations. Its functioning is further defined by the rules promulgated at the first meeting of the Conference of Parties to this treaty.²⁶ Similar to the Aarhus Convention, here too, members of the public have the option to file communications regarding non-compliance by a treaty party.²⁷ Article 15 of the Minamata Convention on Mercury establishes an Implementation and Compliance Committee as a subsidiary body of the Conference of Parties. It functions according to its own rules of procedure, drawn up at its first meeting.²⁸ The Espoo Convention has an Implementation Committee, established by a Meeting of the Parties,²⁹ to review party compliance with treaty objectives. The procedures of this committee have been referred to as non-adversarial and assistance-oriented,³⁰ and they are without prejudice to provisions for dispute settlement under the Convention.

Most recently, the Paris Agreement, under Article 15, established the Committee to Facilitate Implementation and Promote Compliance, whose role is to function in a transparent, non-adversarial, and non-punitive manner. It will function according to its rules of procedure, adopted at CMA4 in Egypt,³¹ and the committee’s work is guided by the modalities and procedures for its effective functioning.³²

A potential weakness of compliance committees is that the committee decisions cannot have the same legal weight as those of judicial bodies. However, this may also be viewed instead as an advantage. The procedures of compliance committees are still too often considered only in comparison to those of judicial organs, leading to the conclusion that they are similar to judicial bodies, but without the same capacity for action.³³ A number of them are composed of legal, as well as other expert members, with recognised competence in the field to which the treaty or protocol relates. Yet they have distinct procedures for determining facts and for discussing different points of view. And, in essence, a compliance committee often provides a non-confrontational means of preventing and addressing situations of non-compliance, with legal as well as technical expert involvement.

Due to their quasi-judicial nature, compliance committees are half-way between scientific committees and ICTs from an institutional perspective.³⁴ However, they are suitable for minor breaches,³⁵ especially when the party in breach is willing to comply, or for serious issues of non-compliance in the first instance (before seeking recourse to an ICT), in cases involving systemic concerns, or when penalties for non-compliance are severe. In the case of serious breaches or when it is foreseen that a treaty party may be unwilling to comply, ICTs have the advantage of providing a more public forum of redress, bringing widespread attention to the non-complying party’s infractions.

7.3 Scientific Committees and Their Contribution to Compliance

Scientific committees contribute to treaty compliance in a number of ways, although their primary role can be seen as an advisory one, on scientific and technical matters, usually advising a treaty’s Conference of Parties. This function helps in strengthening the treaty regime, making it more robust, defensible, and progressive. There are, however, other ways in which scientific bodies could contribute to treaty compliance. This may take the form of contributions to treaty interpretation, or even determining treaty infractions,³⁶ though such roles are rarely seen.

Scientific committees are a sub-class of a wider range of treaty bodies. Under various treaties with environmental or scientific subject matters, as under certain other treaties, there are often treaty bodies which effectively monitor implementation of or compliance with the treaty (such as the IWC Infractions Sub-Committee),³⁷ or provide advice or recommendations on the interpretation³⁸ or application of the concerned treaty (such as the CLCS).³⁹ Treaty bodies may be legal or technical depending on the body. The Infractions Sub-Committee of the IWC is an intergovernmental body, while the CLCS is a technical body. Examples of other intergovernmental treaty bodies include fisheries commissions such as the Commission for the Conservation of Southern Bluefin Tuna (CCSBT)⁴⁰ or regional seas bodies such as the OSPAR Commission.⁴¹ These latter treaty bodies are advised in turn by scientific committees established under these treaties.

Undoubtedly, the role of scientific committees is distinct from that of other treaty bodies as well as from both NCMs and ICTs. Scientific committees exist to ensure smooth and uniform functioning of the treaty regime, along with pushing forward the growth of scientific knowledge in the specific field pertaining to the treaty. For selected examples of scientific committees, we can refer to the scientific committees under the IWC⁴² or the Convention for the Conservation of Southern Bluefin Tuna, the Scientific Committee of which performs an important role in advising the intergovernmental CCSBT.⁴³

However, as in other regional fisheries management organisations, it is the intergovernmental Commission that is the decision-making organ under the Convention. The CCSBT exists to ensure the conservation and optimum utilisation of Southern Bluefin Tuna. Similar to the IWC, the CCSBT is responsible for setting a total allowable catch and its allocation among the members, it can administer regulatory measures to meet Convention objectives, and also take decisions to support and implement fishery management. The CCSBT has also adopted a compliance plan, providing a framework for States to improve compliance. Moreover, non-compliance with the total allowable catch attracts ‘corrective action’. The compliance plan includes policy guidelines such as the Corrective Actions Policy, which sets out a framework to respond to evidence of non-compliance by a treaty party.⁴⁴ This includes details of the decision-making process of the compliance committee of the CCSBT and a list of corrective actions that the committee may recommend. As in the IWC, the Commission’s Scientific Committee acts as an advisory body and makes recommendations to the CCSBT.

We likewise see both non-scientific and scientific treaty bodies under the Convention on International Trade in Endangered Species (CITES), which has a Standing Committee, Secretariat, and two scientific committees – the Animals and Plants Committees – who all play their roles in ensuring treaty implementation and compliance. The Standing Committee provides policy guidance to the Secretariat concerning the implementation of CITES, while also co-ordinating the work of the other committees. The two scientific committees are composed of scientific experts and were established at the sixth meeting of the Conference of Parties in 1987. Their function is to provide technical support to decision-making about species of plants or animals that are or may become subject to CITES trade controls. They provide scientific advice and guidance to the other bodies involved in ensuring compliance, and their membership ensures geographic diversity.

Scientific committees, as distinguished from NCMs and other treaty bodies, are usually composed of scientific members,⁴⁵ and their working procedures vary. Their strength lies in providing authoritative pronouncements on scientific issues. Their recommendations may be used by another treaty body (such as a commission) in arriving at its decisions (as is the case with the IWC relying on its Scientific Committee’s reports in making recommendations and the CCSBT drawing on its Scientific Committee’s advice).

The IWC is composed of Commissioners, one from each party to the International Convention for the Regulation of Whaling (ICRW). Its tasks include designating whale sanctuaries, setting catch limits on whales by species and area, and imposing restrictions on hunting methods. In the absence of any explicit compliance mechanism under the ICRW, the IWC has established an Infractions Sub-Committee. Breaches of the Convention must be reported to the IWC and are discussed by this Sub-Committee. It is not always easy to determine the existence of an infraction, due to ‘wider issues within the Commission’.⁴⁶ Infractions within a country’s national jurisdiction are dealt with by that nation itself, and these countries often impose penalties in the form of fines or imprisonment. The Scientific Committee of the IWC provides scientific advice to the Commission on matters under the Convention. Its tasks have included, for example, review of the second phase of Japan’s Whale Research Programme under Special Permit in the Antarctic (JARPA II),⁴⁷ which was the subject matter of a dispute before the ICJ,⁴⁸ discussed in Section 7.5.1. Thus, a scientific review of whaling research programmes such as JARPA II falls within the purview of the Scientific Committee. The IWC, on the advice of its Scientific Committee, has the power to amend the schedule to the ICRW by adopting regulations with respect to the conservation and utilisation of whale resources.⁴⁹ The Commission may also make recommendations to the State parties.⁵⁰

Established under the UNCLOS is the CLCS. The CLCS is a sui generis body. Like scientific committees under the various conventions, it is comprised of technical experts. It is composed of twenty members, experts in the fields of geology, geophysics, or hydrography, who are elected by States parties to the Convention from among their nationals.⁵¹ They serve in their personal capacities.⁵² Yet its role differs markedly from that of scientific committees. The primary function of the CLCS is to implement Article 76 of UNCLOS, dealing with the definition of the continental shelf, and to establish the outer limit of the continental shelf beyond 200 nautical miles (nm). More specifically, the CLCS considers data from coastal States (UNCLOS parties) concerning the outer limits of the continental shelf beyond 200 nm, provides scientific or technical advice to the State if so asked during preparation of this data, and makes recommendations on the same. The CLCS also has detailed rules of procedure governing not just its composition, conduct of business, and voting, but also the procedure to be followed when receiving submissions from a coastal State and in giving advice to such States.⁵³ It is important to note that the limits of the continental shelf beyond 200 nm established by coastal States based on CLCS recommendations are final and binding.⁵⁴ This is an important distinguishing feature of this body, and is one of the features setting it apart both from traditional scientific committees and from the NCMs discussed so far.

7.4 Recourse to ICTs

Apart from the above-mentioned non-judicial, non-confrontational mechanisms to ensure compliance, many of the treaties or protocols also envisage the option for dispute settlement before an ICT. As the following discussion reveals, these could be the same treaties that also include NCMs. This section looks at the dispute settlement clauses in these kinds of treaties and how ICTs may therefore contribute to treaty compliance, focussing on the examples of the ICRW, UNCLOS, and the CCSBT.

ICTs are certainly not incapable of resolving disputes involving complex scientific issues. An advantage of resorting to judicial means would be that judges have fresh eyes on the matters which treaty bodies deal with on a daily (or at least annual) basis. Judges would thus have some distance and an independent perspective on the matter. This perceived independence also arises out of a perception that scientific committees of a treaty system would tend to be biased in favour of conservation or protection of the environment.

Apart from the IWC and its various committees keeping a check on compliance by treaty parties, there is no dispute resolution clause in the ICRW, providing for recourse to arbitration or judicial settlement by the ICJ, for example. The dispute between Australia and Japan under this Convention was brought before the ICJ through the optional clause of the Statute of the ICJ, that allows States to opt into accepting the compulsory jurisdiction of the ICJ.⁵⁵

On the other hand, the UNCLOS has a robust system of compulsory dispute settlement laid out in Part XV of the Convention. This Part provides a number of options to Contracting Parties, after attempting to settle a dispute through peaceful means, negotiation, or conciliation: recourse to either the ICJ, ITLOS or arbitration under Annex VII or Annex VIII of the Convention. All matters covered by the UNCLOS fall within the jurisdiction of these courts and tribunals. A few specific matters may be expressly excluded by a Contracting Party, as listed in Section 3 of Part XV. UNCLOS tribunals will otherwise have jurisdiction over disputes relating to the continental shelf, and indeed a number of disputes have come up, as discussed in Section 7.5.2.⁵⁶

Parties to the Southern Bluefin Tuna Convention may submit any dispute concerning its interpretation or application, that is not settled amicably to the ICJ or to arbitration under the Annex to the Convention.⁵⁷ However, prior consent of all parties concerned is required before resorting to either of these judicial means of dispute settlement. In the Southern Bluefin Tuna cases,⁵⁸ the Tribunal established under Annex VII of UNCLOS declined jurisdiction since it found that these provisions of the Southern Bluefin Tuna Convention excluded dispute settlement under UNCLOS.

The treaties and conventions discussed in Section 7.2, all possessing NCMs to oversee compliance with treaty obligations, also provide for dispute settlement through ICTs, as in the Southern Bluefin Tuna Convention. Under the Aarhus Convention, parties, after attempting to resolve a dispute by negotiation, have the option to accept the compulsory jurisdiction of the ICJ or of arbitration⁵⁹ for disputes arising under this treaty.⁶⁰ The Escazú Agreement⁶¹ and the Espoo Convention⁶² follow an identical procedure to the Aarhus Convention. The CITES follows a similar route, however including only the possibility of arbitration at the Permanent Court of Arbitration, if negotiations fail.⁶³ The Convention on Biological Diversity envisages a few more amicable means of resolving disputes. Failing resolution through negotiations, parties in dispute could jointly seek good offices or mediation.⁶⁴ Failing both these stages, the modes of ICT dispute settlement as in the Aarhus Convention are also envisaged here.⁶⁵

7.5 Relationship between ICTs and Scientific Committees

The preceding sections have mapped broadly three kinds of mechanisms that operate simultaneously towards treaty implementation and compliance: NCMs, treaty bodies including scientific committees, and ICTs. This chapter now focusses on the latter two mechanisms. This section investigates the relationship between the work of scientific committees and ICTs through a focus on two examples: the Japanese whaling programme in the Antarctic, and selected disputes regarding continental shelf delimitation beyond 200 nm.

First, examining the dispute over the Japanese whaling programme in the ICJ, a proposal is made for the greater involvement of scientific treaty bodies in decision-making by ICTs. Second, examining the selected continental shelf disputes, we look at situations where a specialised scientific body (the CLCS) may issue its recommendations on matters before they proceed to an ICT. This is a unique situation and in the author’s opinion deserves a brief discussion.

7.5.1 Whaling in the Antarctic: The ICJ and IWC’s Scientific Committee

The preceding sections have examined the contributions of different international bodies to treaty compliance. In focussing this section on the relationship between two of these fora (scientific committees and ICTs), a case study on the Whaling case before the ICJ leads to a proposal to involve scientific treaty bodies in the decision-making of ICTs.

In the Whaling case, Australia brought a dispute against Japan (with New Zealand intervening) under the ICRW before the ICJ claiming that Japan’s whaling programme was in breach of its obligations under the Convention.⁶⁶ Although twelve judges were in favour of the majority in its final decision on the merits, eleven judges appended separate or dissenting opinions to the judgment. A reading of these opinions indicates that judges were divided on whether it was the Court’s task to judicially review the Japanese whale research programme, and decide whether the same was ‘for the purpose of scientific research’, or whether it could only be subject to scientific review by the IWC.⁶⁷ According to Judge Xue, the question whether activities under Japan’s whaling research programme , ‘JARPA II’, involved scientific research was a matter of fact rather than a matter of law, and thus should be subject to scientific, not judicial review.⁶⁸ On the other hand, Judge Keith’s declaration emphasised the ICJ’s power to judicially review a State’s granting of special permits under the ICRW.⁶⁹ Judge Bennouna raised the issue that perhaps instead of the ICJ sitting in judgment over such matters of science, these issues could best be left to the IWC and the Scientific Committee to determine at the appropriate times, as determined by the ICRW.⁷⁰ In Judge Bennouna’s opinion, the Court had usurped the powers of these treaty-based bodies. Judge Owada agreed with this proposition,⁷¹ though he further argued that certain aspects of these issues were subject to legal scrutiny – such as whether procedural requirements were followed, or whether the activities in question met the ‘general accepted notion of scientific research’.⁷² In the context of adherence to procedural requirements, the Court ruled that Japan had complied with the obligations under paragraph 30 of the Schedule to the ICRW, that is, submitting proposed scientific permits for review by the Scientific Committee. It is interesting to note the interaction between the Court and the Scientific Committee in this analysis, in the sense that the Court went into detail regarding the Committee’s practice and arrived at its decision on this point based on that practice.⁷³

Thus in the Whaling case, although parties presented expert witnesses who testified and were cross-examined in the oral proceedings, a few judges were of the opinion that the expertise most suited to decide these scientific issues was situated outside the Court.⁷⁴ It is important to note that in accordance with its Statute, the ICJ Registrar had notified the IWC of the proceedings before the Court; however, the IWC chose not to submit any observations.⁷⁵ The Court also noted that the Scientific Committee of the IWC is not empowered to make binding assessments on special whaling permits, the subject of contention before the Court.⁷⁶ Rather, the Committee sends ‘recommendations’ to the IWC regarding its views on programmes for scientific research. The Court considered that Japan should have given ‘due regard’ to the Scientific Committee’s recommendations since States parties to the treaty had a duty to co-operate with the IWC and Committee.⁷⁷ However, a point of contention in this dispute included an assessment of whether all the required reviews had been conducted by the Scientific Committee.

The dissenting judges’ critiques raise important questions regarding the processes most suited to resolve disputes of a scientific nature, especially in the context of treaties which have constituted scientific bodies to advise and provide recommendations on the same scientific issues. One may even consider how ICTs could benefit from the expertise of scientific bodies in their decision-making. The involvement of scientific bodies could be envisaged in two ways: either as consultants involved in the selection of court-appointed experts, or as experts themselves, advising the court or tribunal. Such involvement would provide the dual benefits of uniform treaty compliance and enhanced legitimacy of the judicial decision.

The question of legitimacy of outcome hinges on the legitimacy of the judicial process versus the legitimacy of scientific findings. An ICT could combine the two if it involved the relevant scientific bodies in its decision-making process, perhaps through seeking expert opinions from these bodies. Dispute settlement panels of the World Trade Organization receive advice from international organisations that have the necessary expertise on the subject in dispute before them.⁷⁸ They may also rely on international organisations to suggest names of experts who could aid in fact-finding.⁷⁹ At the same time, certain scientific bodies have often been criticised as being politicised. Some disputing parties may also be of the opinion that scientific committees will always have a bias in favour of the treaty’s objectives (not necessarily a disadvantage). If there is merit in these arguments, it may be better for ICTs to go through their own processes of seeking expert advice (or relying on parties’ expert evidence) and reaching a decision.

7.5.2 Delimitation of the Continental Shelf: Judicial Bodies and the CLCS

This section looks at a specific scientific treaty body, the CLCS, and how its activities intertwine with those of ICTs. In examining selected decisions by the ICJ and ITLOS, this section proposes that for a specialised scientific body like the CLCS, it may be more conducive to compliance if the parties were to wait until the CLCS issues its recommendations prior to initiating dispute settlement proceedings before an ICT.

A series of cases before different ICTs have highlighted the interactions between these judicial bodies and the CLCS. Before the ICJ, in the case concerning Delimitation of the Continental Shelf between Nicaragua and Colombia,⁸⁰ Colombia made a preliminary objection to admissibility of the dispute on the ground that Nicaragua had not obtained the requisite recommendation from the CLCS. While the Court decided on this point that it could undertake the delimitation of the continental shelf beyond 200 nm independently of a recommendation of the CLCS,⁸¹ Judge Bhandari’s declaration on this issue is also interesting to note. In his opinion, the CLCS, a specialised agency with a specific mandate to investigate and pronounce upon continental shelf claims, consisting of members who are world-renowned experts in such relevant fields as geology, geophysics, and hydrology, are better equipped to resolve a continental shelf dispute such as the one before the ICJ. He was not in favour of relying on expert testimony from the parties either, since that would not only constitute an

inefficient use of valuable Court resources, but … Parties would bring witnesses most likely to advance their respective and competing claims, whose opinions could … be at odds with those of the expert members of the CLCS. This, in turn, could potentially lead to the uneasy situation wherein the CLCS and the Court reach incompatible conclusions regarding Nicaragua’s continental shelf claim.⁸²

While Judge Bhandari’s comment brings forth the general question of the ICJ being able to adjudicate scientific claims, in this particular instance, it must be read with Article 9 of Annex II to UNCLOS, which states that the ‘actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts’. This could, however, lead to conflicting pronouncements from two different authorities. Scholarly opinion leans towards the Court appointing experts under Article 50 of its Statute, for a transparent evaluation of the scientific evidence.⁸³

In another ICJ dispute between Somalia and Kenya, the Court noted unequivocally that

a lack of certainty regarding the outer limits of the continental shelf, and thus the precise location of the endpoint of a given boundary in the area beyond 200 nautical miles, does not, however, necessarily prevent either the States concerned or the Court from undertaking the delimitation of the boundary in appropriate circumstances before the CLCS has made its recommendations.⁸⁴

This pronouncement is a step towards embracing the legal aspect of scientific issues and responds to the challenge to the ICJ’s capability to evaluate the scientific evidence supporting a claim of continental shelf beyond 200 nm.⁸⁵ Thus, issues of maritime delimitation require international tribunals ‘to make a conclusive decision as to whether the continental shelves beyond 200 nm exist and to what extent they are overlapping’.⁸⁶

Like the ICJ, the ITLOS has also faced the question of its competence to decide technical questions of boundary delimitation as opposed to the CLCS. While the Tribunal decided that it is competent to decide the legal aspects of these issues, strong opposing views contend that the CLCS being an expert body would be best placed to ascertain the scientific facts, perhaps in contradiction to uncontested evidence before the ITLOS. The significance of the Bangladesh/Myanmar case⁸⁷ lies in the examination of the relationship between the dispute-settling role of the Tribunal and the recommendatory (though almost decision-making) role of a body composed of scientific experts, the CLCS.⁸⁸ The determination of entitlement on the continental shelf beyond the 200 nm limit requires interpretation of Article 76 of UNCLOS, which, inter alia, defines the continental shelf and its limits. It is with respect to this task that the judgment made important remarks regarding the Tribunal’s authority to interpret and apply Article 76, relying on scientific evidence as appropriate. The ITLOS noted that

as this article contains elements of law and science, its proper interpretation and application requires both legal and scientific expertise. While the CLCS is a scientific and technical body with recommendatory functions entrusted by the Convention to consider scientific and technical issues arising in the implementation of article 76 on the basis of submissions by coastal States, the Tribunal can interpret and apply the provisions of the UNCLOS, including article 76. This may include dealing with uncontested scientific materials or require recourse to experts.⁸⁹

Moreover, since the question before the Tribunal regarding the parties’ entitlement to a continental shelf beyond 200 nm was largely legal in nature, the ITLOS ruled that it ‘can and should determine entitlements of the Parties in this particular case’. However since the application of Article 76(4) required scientific and technical expertise, the ITLOS considered that it ‘would have been hesitant to proceed with the delimitation of the area beyond 200 nm had it concluded that there was significant uncertainty as to the existence of a continental margin in the area in question’.⁹⁰ Due to the ‘uncontested scientific material’ before it (Bangladesh’s expert reports that Myanmar did not challenge), it could proceed to decide the legal question, by interpreting Article 76.⁹¹ It would have been interesting to see the steps taken by the Tribunal if there were no such uncontested scientific evidence before it.⁹² The facts of this case also raise the question as to whether uncontested scientific evidence should in principle relieve the ITLOS of its obligation to evaluate the evidence on its merits.

An interesting aspect of this unchallenged acceptance of scientific evidence comes to light from Judge Ndiaye’s Separate Opinion in Bangladesh/Myanmar.⁹³ He notes that under UNCLOS the power to assess the scientific and technical data submitted by a coastal State to the CLCS is vested exclusively in the CLCS. According to him, an ‘exercise in maritime delimitation consists of applying the natural sciences to ascertain the extent of the natural prolongation under the sea of each of the two States and of making a finding on – not awarding – the extent of the submarine basement nature has placed before each of the two States.’⁹⁴ While it is true that under Article 9 of Annex II to UNCLOS, actions of the CLCS do not prejudice matters regarding delimitation of coastal boundaries between States, according to Judge Ndiaye, the subject matter of this dispute called for a factual determination, rather than the Tribunal’s acceptance of ‘uncontested scientific evidence’. The CLCS, conducting an independent, objective analysis,⁹⁵ might have found the uncontested scientific evidence to be incorrect. This reasoning goes a step further than that of Judge Bhandari in Nicaragua v Colombia before the ICJ.

More recently, in the maritime boundary dispute between Ghana and Côte d’Ivoire, the CLCS had already made its recommendations in respect of Ghana, thus there was no risk that a judicial pronouncement would interfere with the functions of the CLCS. The Special Chamber of the ITLOS constituted to deal with the dispute, following the Tribunal in the Bangladesh/Myanmar case, also decided that it had the jurisdiction to delimit the continental shelf beyond 200 nm.⁹⁶ In this case, it justified its decision in light of the circumstances of the case: ‘there [was] no doubt that a continental shelf beyond 200 nm exists in respect of the two Parties.’⁹⁷

The exercise of delimitation of the continental shelf has both legal and scientific components. Although scientifically based,⁹⁸ it is legal in nature since it prescribes the entitlement of coastal States to the continental shelf.⁹⁹ Conversely, although legal in nature, the establishment of entitlement to the continental shelf beyond 200 nm involves evaluation of scientific evidence from geology or geomorphology or both. While Article 76 of the UNCLOS sets out specific criteria for the determination of the outer edge of the continental margin and the outer limits of the legal continental shelf, the task of application is not straightforward. Although Article 76 uses scientific terminology, the terms do not necessarily have the same meaning as in science. As pointed out in the Scientific and Technical Guidelines adopted by the CLCS, ‘[t]he Convention makes use of scientific terms in the legal context which at times departs significantly from accepted scientific definitions and terminology’.¹⁰⁰

Two main options are thus presented to disputing parties: first, if States dealing with a continental shelf delimitation were consistently to follow a sequence of approaching the CLCS before resorting to ICTs (if necessary), these courts and tribunals would have the benefit of a CLCS recommendation before issuing their decisions. It is in States’ interests to avoid inconsistency between recommendations and rulings in these different fora. Second, in the event that such disputes are brought before ICTs, if the courts’ decision-making involves assessment of scientific evidence, the use of experts by ICTs could grant greater legitimacy to their decisions and might increase the possibility of the courts’ operating in harmony with the recommendations of the CLCS. Of course, it must be borne in mind that, thus far, consultation of experts by the ICJ has been sparse, and by the ITLOS non-existent.¹⁰¹

7.6 Conclusion

This chapter has examined how treaty compliance could be strengthened through the spectrum of a variety of fora – NCMs, scientific committees, and ICTs. The goal has been to examine their roles in treaty compliance both separately and in conjunction with each other. The chapter concludes that, to the extent possible, treaty parties should aim for a sequential approach, with ICTs being the last resort. This would provide the ICTs with the technical expertise of the scientific committees, and could enhance the legitimacy of the judicial decision, also avoiding inconsistencies between the outcomes of different fora. States parties should operate on a basis informed by the advice of scientific committees and the guidance of NCMs and thereafter, if necessary, an ICT could rely on this Scientific Committee’s findings or recommendations in arriving at its decision.