Environmental Compliance Mechanisms

by

Malgosia Fitzmaurice, Panos Merkouris

• LAST REVIEWED: 28 July 2021
• LAST MODIFIED: 28 July 2021
• DOI: 10.1093/obo/9780199796953-0010

Introduction

Compliance mechanisms can be found in treaties regulating such diverse issues as human rights, disarmament law, and environmental law. In this article, the focus will be on compliance mechanisms of multilateral environmental agreements (MEAs). Compliance with norms of international environmental law, in particular those included in MEAs, has been of interest for many years, both from a theoretical and practical point of view. Compliance with MEAs is a matter that differs greatly from compliance with domestic environmental rules. In relation to compliance with the norms of environmental agreements, the focus of this article is on sovereign countries. There are a number of theories that attempt to address the complex issues involved in the legal basis of compliance as well as the best methods to ensure it, ranging from facilitative to compulsory techniques. The theory of compliance comprises the debate on the extent of functions of the organs established by MEAs (such as the compliance committees Conference of the Parties [COPs], Meeting of the Parties [MOPs], or both). There are already a great number of diverse compliance procedures attached to various MEAs, such as in the 1987 Montreal Protocol on Substances That Deplete the Ozone Layer (see United Nations Environment Programme 2000, cited under Montreal Protocol) and the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change. It should be kept in mind that MEAs and noncompliance procedures do not exist in a normative vacuum. Compliance theories are linked with general international law; for instance, in terms of the question of the use of countermeasures in compliance control and material breach of treaties. Even nonbinding norms may have a role in promoting compliance with obligations undertaken under MEAs. In practice, environmental compliance and the gradual evolution of compliance procedures in international environmental law is one of most vibrant and stimulating subject matters in international law and is still evolving.

Introductory Works

Compliance and noncompliance procedures are key notions in international environmental law and are closely connected to the effectiveness of multilateral environmental agreements (MEAs). Bodansky, et al. 2007 acknowledges the importance of compliance, implementation, and enforcement by devoting an entire part (Part VII) to the analysis of these notions and their related issues. Burgstaller 2005 offers an extensive analysis of the main theories of compliance, whereas Wolfrum 1998 takes on a more holistic approach, not only by examining the theoretical foundations of compliance but also by supplementing this with practical considerations and examples. Beyerlin, et al. 2006 describes the various noncompliance procedures (NCPs) that have been established under a number of MEAs and their advantages and disadvantages, and supplements this analysis with an examination of other compliance-related issues, such as sanctions, the connection with dispute settlement, and the role of nongovernmental organizations (NGOs). Similarly, Treves, et al. 2009 offers a detailed overview of specific NCPs to be found in MEAs and examines more-general issues such as the structural and institutional aspects of NCPs and their relationship with general international law. Brown Weiss and Jacobson 1998 examines the compliance records of several states and identifies the factors leading to noncompliance and the lessons to be learned. Cameron, et al. 1996 and Paddock, et al. 2011 tackle the issue of how compliance can be achieved or improved. Fitzmaurice and French 2015 analyzes the ecology of institutional governance in MEAs, and the place of NCPs within the framework of Conference of the Parties (COP) governance.

• Beyerlin, Ulrich, Peter-Tobias Stoll, and Rüdiger Wolfrum, eds. Ensuring Compliance with Multilateral Environmental Agreements: A Dialogue between Practitioners and Academia. Leiden, The Netherlands: Martinus Nijhoff, 2006.

  This collection of essays focuses mainly on the function and complexities of the NCPs established by a number of MEAs but also examines wider theoretical issues of compliance, such as the issue of sanctions, the connection with dispute settlement, and the role of NGOs.

• Bodansky, Daniel, Jutta Brunnée, and Ellen Hey, eds. The Oxford Handbook of International Environmental Law. Oxford: Oxford University Press, 2007.

  The Oxford Handbook of International Environmental Law provides an analysis of the complex field of international environmental law in general and acknowledges the importance of compliance, implementation, and enforcement, in particular by devoting an entire part (Part VII) to the analysis of these issues.

• Brown Weiss, Edith, and Harold Karan Jacobson, eds. Engaging Countries: Strengthening Compliance with International Environmental Accords. Cambridge, MA: Massachusetts Institute of Technology Press, 1998.

  This volume of essays provides a detailed analysis of several states’ compliance records with five major international environmental agreements. These records are supplemented by an identification of the factors leading to noncompliance in each instance and the policy lessons that can be learned.

• Burgstaller, Markus. Theories of Compliance with International Law. Developments in International Law 52. Leiden, The Netherlands: Martinus Nijhoff, 2005.

  In this book, the author presents an extensive analysis of theories of compliance. He begins with the philosophical foundations of compliance, moves to a typology of the various theories, and caps this analysis with an examination and critical overview of the most notable of these theories.

• Cameron, James, Jacob Werksman, and Peter Roderick, eds. Improving Compliance with International Environmental Law. London: Earthscan, 1996.

  This volume of collected essays addresses the question of how the compliance record could be improved with respect to several MEAs without jeopardizing the fragile political consensus that is emerging on environmental issues. Several case studies are examined in depth.

• Fitzmaurice, Malgosia, and Duncan French, eds. International Environmental Law and Governance. Papers presented at a workshop held in March 2011 at the University of London. Queen Mary Studies in International Law 19. Leiden, The Netherlands: Martinus Nijhoff, 2015.

  This edited volume analyzes the ecology of institutional governance in MEAs. It delves into the question of legitimacy and efficacy created on the basis of MEAs; namely, COPs and Meetings of the Parties (MOPs). In doing so, it examines their structure, outcomes, and collaborative efforts in achieving desired goals of environmental protection, as well as other modern alternative approaches of environmental governance.

• Paddock, LeRoy, Du Qun, Louis Kotzé, David Markell, Kenneth Markowitz, and Durwood Zaelke, eds. Compliance and Enforcement in Environmental Law: Toward a More Effective Implementation. IUCN Academy of Environmental Law. Cheltenham, UK, and Northampton, MA: Edward Elgar, 2011.

  This collection of essays both from academics and practitioners provides a perspective on how to achieve compliance with and enforcement of environmental laws. The examined issues range from enforcement of MEAs and compliance strategies, to the role of courts and citizens in compliance, to the protection of natural resources.

• Treves, Tullio, Attila Tanzi, Cesare Pitea, Chiara Ragni, and Laura Pineschi, eds. Non-compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements. The Hague: T. M. C Asser, 2009.

  This edited collection provides a comprehensive analysis of the various existing NCPs. Its contributors examine the NCPs in universal and regional environmental agreements, as well as their structural and institutional aspects and their relationship with general international law.

• Wolfrum, Rüdiger. “Means of Ensuring Compliance with and Enforcement of International Environmental Law.” Recueil des Cours de l’Académie de Droit de La Haye 272 (1998): 9–154.

  DOI: 10.1163/ej.9789041112378.009-41010.1163/ej.9789041112378.009-154

  Wolfrum presents a comprehensive analysis of the multitude of issues that pertain to the issue of compliance with and enforcement of international environmental law, ranging from theories of compliance and reasons for noncompliance to methods of promoting compliance, as well as practical examples and case studies.