AN OVERVIEW OF ENFORCEMENT AND COMPLIANCE MECHANISMS IN INTERNATIONAL ENVIRONMENTAL AGREEMENTS

by

Scott A. Hajost*

and

Quinlan J. Shea, III**

*Senior Attorney, Environmental Defense Fund (Former Acting Associate Administrator, Office of International Activities, United States Environmental Protection Agency)

**Special Assistant, Office of Enforcement, United States Environmental Protection Agency

The authors would like to thank their colleagues for their review and comments and particularly Deborah Good, Pamela Proctor and Regina Lee who patiently attended to the problems of providing a finished manuscript.

The views expressed in this article are the personal views of the authors. No official support or endorsement by the EPA or EDF is intended or implied.

SUMMARY

The purpose of this paper is to provide an overview of the enforcement and compliance-related provisions in selected international environmental agreements. It will not address international organizations per se, although it will reference customary international law, i.e., international law created through state practice, as necessary. Several non-environmental international agreements will also be discussed for comparative purposes.

In particular, this paper will review some of the specific tools that are embodied in international environmental agreements to seek and monitor compliance. These include: reporting requirements, obligations to adopt requisite domestic implementing legislation, monitoring and review provisions, specific compliance and detection of noncompliance provisions, and dispute settlement mechanisms. All these tools facilitate the ability of states to ascertain whether or not other parties are meeting their international commitments and, if not, to take appropriate steps to seek compliance.

1. Introduction

The years since the 1972 UN Conference on the Human Environment in Stockholm have witnessed ever increasing priority given to environmental protection and an increasing recognition of the need for international cooperation to this end. This cooperation has been undertaken in a variety of contexts not the least of which is the codification of new legal obligations in the form of an impressive array of global, regional, and bilateral international environmental agreements. These agreements address all forms of pollution of the marine environment, conservation of wildlife and habitat, transboundary air pollution, protection of the stratospheric ozone layer, waste exports and protection of the Arctic and Antarctic environments. Together with related international developments, and the efforts of international organizations and the NGO community, international environmental agreements prescribe basic obligations of states. The agreements also frequently establish rulemaking procedures intended to supplement those agreements.

At the outset, it is important to note the distinction between international law and domestic law. This distinction has a direct bearing on enforcement issues. International law, despite the quasi-legislative nature of some international organizations and agreements, does not have the same hierarchical structure, as do national legal systems. National legal systems have legislative bodies, courts, and government officials that create, define, and enforce legal obligations. Notwithstanding the establishment and operation of the International Court of Justice and the United Nations, international law has been characterized by one commentator as a “horizontal system” without enforcement mechanisms that operate from above.¹ Although the international system has a relatively developed structure of institutions, there is no international police force, and international bodies do not possess ultimate sanction authority to issue and enforce decisions.

In general, international law, including agreements, is based on the voluntary acceptance of sovereign states that recognize it to be in their interest to sacrifice some degree of sovereignty in return for commitments from others. AT the same time, states comply with international legal obligations in order to maintain good standing in the international community.

For the most part, states do comply with their international obligations. They consider the longer term advantages of compliance to outweigh shorter term gains obtained as a result of noncompliance in any specific instances. In many ways, these motivating factors are not dissimilar from those of individuals responsible for complying with domestic laws at the national level. Nonetheless, although governments are created in part to ensure adherence with the rule of law, at the international level many facets of “government” exist only on a “good faith” or rudimentary level. As a general rule, international environmental agreements haven't yet evolved to the extent of having sophisticated, centralized enforcement mechanisms to ensure strict compliance. As a result, their viability remains dependent upon the good faith efforts of parties to comply with stated obligations with respect to both the agreement itself, and decisions by bodies established thereunder.

While states generally comply voluntarily with their international obligations, there is an additional, supporting principle of international law that treaties must be observed.² That principle has been codified in the 1969 Vienna Convention on the Law of Treaties.³ Article 26 of the Convention, entitled “pacta sunt servanda” provides that every treaty in force is binding upon the parties to it and must be carried out by them in good faith. This principle of customary and conventional international law underpins all the other mechanisms embodied in international agreements concerning compliance and is the most fundamental legal basis for the requirement that states meet their treaty obligations.

Before turning to the formal panoply of tools for facilitating compliance with international environmental agreements, it is worth nothing the informal means that states use to seek compliance from other parties to agreements. These means include inform persuasion and consultation, as well as what has been termed the “mobilization of shame” – the public identification and dissemination of specific acts of noncompliance or questionable compliance.⁴ States generally prefer to settle their differences through dialogue and quiet diplomacy,⁵ and usually resort to more formal and public means only after all other methods fail. Under these less formal procedures there may be dialogue and consultation among the parties to an agreement, identification of potential problems by a Secretariat to an agreement, and possibly discussions concerning a state’s compliance with the findings subsequently published in a report.

2. State Liability and Compliance with International Environmental Agreements

2.1 Background

The concept of an international law of the environment is relatively new. It is principally a result of twentieth century technological advances and a corresponding increased understanding of the environmental consequences of those advances. In the last twenty years, this area of international law has developed rapidly as problems such as oil and chemical spills, acid rain, stratospheric ozone depletion and polluted waterways have clearly demonstrated that environmental degradation does not respect man-made boundaries. There has been a growing recognition that “pollution and other sorts of environmental harm are propagated regardless of state sovereignty and its limits,” and that, accordingly, “the struggle against it must be international.”⁶ Furthermore, “the quality of the environment and natural resource management are no longer regarded as solely domestic concerns, for environmental impacts may be much more wide-ranging: they may dramatically affect foreign economies, or public health, and they may even ignite belligerent actions.”⁷

Focusing specifically on the past solutions available to address insults to the environment, legal actions were originally taken within the existing structure of international law which placed little emphasis on the environment. For example, in older treaties involving environmental-related disputes, established principles of international law were extended to cover the issues in question, rather than legal concepts being modified to incorporate environmental concepts.⁸ In essence, two principles of international law traditionally have been applied to environmental issues. First, “a nation should not permit action within its territorial jurisdiction to harm the interest of other nations.”⁹ Second, “nations should cooperate to serve the mutual interests of their respective peoples.”¹⁰ In recent years, there has evolved the concept that international cooperation should, when necessary, take the form of legal efforts to protect the environment and that international law should recognize the human right to a “clean, pure, healthy, and even decent environment.”¹¹

2.2 General Characteristics of State Liability

There exists no universal treaty governing liability for transboundary environmental damage. In the absence of a binding agreement between nations, injured parties must look to customary international law, one cornerstone of which is treaty law. The advantages and necessity of bilateral and multilateral agreements for international environmental issues are obvious. There are limits to the scope of environmental harm to which even the most powerful country can respond unilaterally. For example, global media such as the oceans are particularly difficult to protect exclusively on the national level given the existence of borders and the right of free passage for foreign vessels through coastal waters. As such, some form of international standard-setting is required; international agreements between countries provide the most direct means of prevention and control as they can include precise environmental standards.¹² Upon ratification, the provisions containing these standards immediately acquire an obligatory character under the terms of the agreement.

While treaties offer the opportunity to address specific noncompliance with environmental standards, they contain significant limitations. The most obvious is the fact that the group of interested or affected states must arrive at a consensus as to the scope and contents of the agreement. Differing perceptions of national self-interest and the historic reluctance to commit to overly restrictive rules can make this a difficult process.¹³ Common environmental standards may be seen as imposing unfair economic burdens, for example, particularly on developing countries. Thus, the net result of negotiations may be weak obligations that reflect the “lowest common denominator” among the signatories.¹⁴

Once agreement is reached, a breach of the agreement, particularly a multilateral agreement, may affect one country in particular or even a group of countries as a whole. Whenever the rights and interests of one state are “specifically affected,” that state suffers a particular injury which under the law of international responsibility is supposed to be treated exactly as is any other particular injury.¹⁵ The affected state is an “injured state” that is owed an obligation to make “reparation in an adequate form.”¹⁶ The problem becomes more complicated when the breach of a multilateral agreement does not affect one state in particular, but all the signatory countries. It is well established that the affected states collectively suffer an injury and are entitled to claim adequate reparation. There is, however, a distinction between those instances in which the consequences of the violation are organized by the treaty itself and those in which they are not.¹⁷

Though the types of specific enforcement and compliance provisions usually found in international environmental agreements will be discussed in more detail below, it is important to note at this juncture that treaties provide for collective and unilateral remedies against a violating state. Collective reparation can be found in the provisions of the constitutive charters of international organizations which provide for remedies against a defaulting party. For example, Article 19 of the United Nations Charter provides for a collective remedy insofar as the General Assembly may suspend the voting rights of a state in default of payment.¹⁸

When a treaty does not include provisions addressing the consequences of a violation, the situation is more complex. In many instances, one of the affected states might choose to take steps to unilaterally rectify the violation. The traditional approach to this eventuality links the lawfulness of any unilateral action to an actual and identifiable injury to the aggrieved country.¹⁹ Unfortunately, this approach is flawed with respect to its application to treaty law. The concept of “injured state” is elusive because it is inexorably intertwined with the notion of “moral damage” in international law.²⁰ Even though the outcome of a violation of a multilateral agreement under this approach is usually a finding of injury, the result “does not advance international legal reasoning very far.”²¹

An alternative approach, which is consistently employed by the United States, separates the right to take unilateral steps from the existence of an actual injury. The U.S. addresses violations strictly as a matter of enforcement and not simply as a matter of international responsibility. A statutory example of this practice by the U.S. in the environmental arena is found in the Fishery Conservation and Management Act of 1976 which provides for reductions in fishing allocations within the U.S. 200 mile fishery conservation zone to countries deemed to be compromising the effectiveness of the International Convention for the Regulation of Whaling.²²

Some scholars have speculated that the U.S. position may be a response to a problem that was tactfully avoided in the Vienna Convention on the Law of Treaties, i.e., whether general international law compels nations not to hinder the execution of valid agreements concluded by other states.²³ The Vienna Convention makes such an obligation binding upon third parties only after the provisions of a treaty have turned into customary rules of international law. The U.S. approach, however, has the effect of enforcing against all states rules which are not truly customary.²⁴ It is the U.S. perception of effective enforcement and compliance mechanisms in any given agreement that prompts these unilateral steps.

2.3 An Overview of Enforcement and Compliance Mechanisms

2.3.1 Reparations

Whatever the legal approach, once it is determined that a state is out of compliance or has otherwise violated a substantive provision of an agreement, a variety of legal consequences may follow. The general rule stated by the permanent Court of International Justice in the Chorzow Factory case, namely that a breach of an obligation triggers a second obligation to make reparation, is applicable.²⁵ Reparation should as far as possible, erase the consequences of the violation and reestablish the situation which would have existed if that violation had not been committed.²⁶ Because restoration of the status quo ante is usually not possible or feasible once environmental damage has occurred, other means must be found to satisfy injured parties.

International agreements often contain provisions governing the settlement of disputes, discussed in more detail below, which often arise in the context of reparation negotiations.²⁷ One relatively infrequently used means of reparation worth noting is a declaratory judgment which, when made by an appropriate international tribunal, may provide satisfaction to an injured party. Though a simple finding in favor of the injured state may not restore the environment, it may have a deterrent effect on the violating state for purposes of future behavior. Though compliance mechanisms such as reporting requirements can come into play as forms of reparations, they will be addressed separately because these mechanisms are commonly present as independent provisions of international environmental agreements. By far, the two most effective forms of reparation are the payment of compensation for damage already done and pollution abatement, which involves the cessation or modification of the violator’s behavior.

2.3.1.1 Compensation

Compensation is a common form of reparation where restitution in kind is not practical. The general rule is that a monetary payment for damage suffered is appropriate.²⁸ There are, however, variances, particularly to provide some new benefit to the injured party to make up for its loss. For example, the Finland-USSR frontier treaty allows the two countries to “make reparation for any loss for damage caused…by granting the Party suffering the loss or damage certain privileges in the watercourse of the other Party.”²⁹ The criteria for determining the actual award when monetary compensation is given are complex and, of course, depend on the forum in which a claim is presented.³⁰ It may also be difficult to assess the value of the affected environmental resources.

Two further collateral considerations merit brief attention. The first is the possibility of assessing punitive damages as a deterrent in especially egregious cases. Though the decisions of international tribunals offer little support for such an approach,³¹ the International Law Commission (ILC) has attempted to define a category of “international crimes” whose commission might warrant more than normal reparation.³² Further analysis by the ILC and interested countries is necessary to determine what value punitive damages may present. At this time, international environmental law appears to be insufficiently developed to support such a concept. In this regard, to the extent that international environmental agreements address liability, they typically do nothing more than call upon the parties to develop liability systems.

A second collateral issue is the role of liability-limiting agreements which are attempts by countries to limit the potential for huge claims following events such as the Bhopal disaster, or the Amoco Cadiz and Exxon Valdez supertanker spills.³³ Some countries, such as the United States, have refused to ratify conventions whose liability provisions they consider to be inadequate according to their legal and political judgment, and instead utilize the enforcement provisions of domestic legislation to govern liability for spills from vessels entering their ports.³⁴

2.3.1.2 Pollution Abatement

Compensation, while an important means of making an injured party whole, will not in and of itself prevent a reoccurrence of identical or similar activities by the violating party. It is reasonable to expect that provisions will be made to eliminate or modify environmentally detrimental behavior. At the same time, the total cessation of an injurious activity may not be necessary except in extreme circumstances such as where there is a need for a prohibition on the manufacturing and export of dangerous substances, or the dumping of hazardous wastes in a certain body of water.

Because of the potential economic and social value of behavior that has the effect of causing pollution, it is far more common for states to agree to liability regimes that entail an obligation to minimize or reduce those detrimental effects rather than cease the activity. Typically, the violator’s abatement obligation is qualified by language such as “in so far as such measures are economically feasible.”³⁵ The Finland-Sweden Frontier Rivers Agreement, which calls for the cessation of construction that “injures a substantial public interest,” is modified to the extent that it provides that construction can resume “on the condition it is of particular importance for the economy.”³⁶

2.3.2 Compliance Monitoring

Growing international concern over environmental problems has led to the inclusion of a wide array of enforcement and liability provisions in bilateral and multilateral agreements which govern the behavior of states after environmental injuries have already occurred. Scholars have increasingly noted that by approaching environmental problems from a liability perspective, adversarial confrontations are regulated but not reduced.³⁷ Furthermore, there is no corresponding benefit to the environment. Accordingly, it is appropriate that enforcement provisions should be supplemented by provisions whose goal is the prevention of environmental damage. In these cases, states are required to take some preventive measures even before commencing environmentally threatening activities.

In the United States, preventive measures are, cumulatively, termed “pollution prevention.”³⁸ It is anticipated that pollution prevention planning will be implemented throughout every environmental regulatory program in the near future. The emphasis on preventing pollution at the source is intended to reduce or eliminate root causes of pollution and thus many violations, thereby increasing the prospects for minimal pollution and continuous compliance in the future. It is further anticipated that final environmental guidelines will explicitly encourage enforcement personnel to incorporate pollution prevention conditions in enforcement settlements.³⁹

As noted previously, the rules governing state liability once environmental damage has already occurred are imprecise. Rules addressing preventative or reporting requirements may be more advanced.

2.3.2.1 Evaluation Requirements

The duty to make an environmental evaluation of certain activities is relatively noncontroversial and is probably an element of international law⁴⁰ despite the lack of universally accepted evaluation criteria. The essential issue is the weight that a state must give in its internal management decisions to the transboundary impact of environmentally dangerous activities.

The need for proper environmental planning was a constant theme at the 1972 Stockholm Conference on the Human Environment; Principle 17 of the declaration states that “appropriate national institutions must be entrusted with the task of planning, managing or controlling the environmental resources of states with a view to enhancing environmental quality.”⁴¹ General state practice reflects the concern that states share with respect to boundary and frontier resources. Many early treaties, however, are exceptionally vague in defining the obligations entailed in applicable provisions; the 1960 Frontier Treaty between the Netherlands and Federal Republic of Germany only references the “due regard” each is expected to give to the other’s “interest in the boundary waters.”⁴² The Nordic Convention is more precise in that parties must treat the damaging effects that environmentally –threatening activities might cause in another country as if they were created domestically.⁴³

At the present time, the institution of the environmental impact assessment process is a basic principle which is reflected in a multitude of international agreements which vary in the degree to which they are legally binding. The following, for example, have the force of treaty: the 1985 Agreement of the Association of South-East Asian Nations on Conservation of Nature and Natural Resources (Articles 14, 19, and 20);⁴⁴ the Convention on Protection and Utilizing the Aquatic Environment of the Caspian Region (Article 12),⁴⁵ and the 1982 United Nations Convention on Maritime Law (Article 206).⁴⁶

2.3.2.2. Notification Requirement

The duty to notify states of possible transboundary harm is an emerging principle of international environmental law. In the context of the Chernobyl incident, the United States concluded that the Soviet Union had a duty to notify. (After Chernobyl, the IAEA rapidly concluded the 1986 Convention on Early Notification of a Nuclear Accident.)⁴⁷ OECD policies promulgated by the Nuclear Energy Agency (NEA) often serve as the basis for some international organizations as well as a means of raising public awareness.⁴⁸ The OECD has attempted to expand international law relating to transboundary air pollution by developing further the principles of notification and consultation.⁴⁹ Requirements for notifying others in risk of environmental harm have been most developed in the marine environment context.⁵⁰

Many international agreements require there to be a certain level of potential damage before there is a duty to inform, a threshold often loosely described only as “significant harm.”⁵¹ Further, while some agreements contain standards as to the timeliness of notification, others do not.⁵² An exception to the general rule is the Moon Treaty which does not suffer from vagueness in that it obligates all parties to notify the Secretary General of the United Nations before any radioactive materials can be placed on the moon, regardless of the level of environmental damage posed.⁵³

2.3.2.2 Consultation Requirement

The duty to consult theoretically also arises when a proposed activity is expected to cause a level of damage that may be higher than that required for the duty to inform.⁵⁴ Because consultation can involved extensive discussions and potential liability, it is a duty which states may in some cases be unwilling to comply with other than that to supply rudimentary information to the affected states.

Most of the consultation standards that exist in international agreements lack specific guidance as to the degree of environmental damage that needs to be threatened before there is a duty to consult other states. While the normal presumption is that a state requesting consultations must demonstrate standing,⁵⁵ the consultation procedure that would be established by the Council of Europe in the draft European Convention for the Protection of International Watercourses Against Pollution adopts a significantly different approach. Article 12 requires automatic consultations among all relevant parties at the request of any one party.⁵⁶ The burden is shifted to any state that wants to avoid consultations to demonstrate that it is not “bound to enter into negotiations.”⁵⁷

While the ultimate objective of consultation is the resolution of disputes between parties, the provisions of various international agreements require different results. For example, the UN Economic Council for Europe 1979 Convention on Long Range Transboundary Air Pollution (LRTAP) does not envision any particular goal with regard t its requirement of consultation; a state planning an activity covered by this provision would appear to be obligated only to discuss the matter in good faith with other affected parties.⁵⁸ Though many conventions do refer to the negotiation of an explicit agreement as the objective of consultation, it is often unclear what the results will be if the parties are unable to agree. Some form of third-party intervention to facilitate an agreement may be appropriate.

2.4 An Overview of Dispute Resolution Mechanisms

2.4.1. Introduction

Article 2, paragraph 3 of the U.N. Charter requires that: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” The U.N. General Assembly, in adopting the 1982 Manila Declaration on the Peaceful Settlement of Disputes, emphasized the “need to exert utmost efforts in order to settle any conflicts and disputes between states exclusively by peaceful means” and that “the question of the peaceful settlement of disputes should represent one of the central concerns for states and for the United Nations.”⁵⁹

When national governments engage in activities which irreparably damage the global environment and threaten human health, their behavior may give rise to disputes. As noted earlier, claims brought by other states for breach of obligations under international law or under treaty can usually be handled through traditional interstate dispute resolution processes such as diplomacy and adjudication. As to treaty agreements, there frequently exists not only general obligations of peaceful settlement, but requirements or recommendations related to the use of specific dispute resolution techniques such a negotiation, conciliation and arbitration. At the present time, there are over 250 bilateral and multilateral agreements⁶⁰ that incorporate “compromissory clauses” or other obligations to settle disputes peacefully. Many identify the International Court of Justice as a possible forum for resolving disputes as to the interpretation or application of the agreements.⁶¹

The principal element differentiating the various dispute resolution techniques is the extent to which third parties can legitimately participate in helping to bring about or determining the settlement and, conversely, the extent to which the parties can reject a settlement proposed by the third party.⁶² In practice, distinctions between these techniques may be more theoretical than real, and a particular process of dispute settlement may combine elements of several techniques.

2.4.2 Settlement Procedures

2.4.2.1 Negotiation

Negotiation is a process whereby the parties directly communicate and bargain with each other in an attempt to agree on a settlement of the issue. By choosing to employ this technique, parties retain maximum control of the dispute resolution process and outcome. Negotiation is clearly the predominant and preferred method of resolving disputes. The use of other techniques, including adjudication, is invariably preceded, accompanied by and arranged through some sort of negotiation process.⁶³

Many existing environmental agreements require notification, and it may be considered part of the state’s consultation duty.⁶⁴ In most instances, negotiation is required only in response to a specific problem and only when it has reached a certain threshold of seriousness.⁶⁵ This permits an early identification of potential areas of disagreement as well as an opportunity to agree on temporary measures should conditions warrant such.

Third parties can play an important role in facilitating negotiations. Through investigation and analysis, they provide a neutral body of data to serve as the basis for negotiations and, as appropriate, recommend technical measures.⁶⁶ Third parties can also encourage dispute resolution through meditation and conciliation and are apt to discuss political as well as technical issues.

2.4.2.2 Arbitration

This technique involves the referral of the dispute by agreement of the parties, or at the request of one party depending on the agreement, to an ad hoc tribunal for a decision usually on the basis of international law.⁶⁷ The parties to the dispute establish in advance the issue or issues to be arbitrated and the machinery and procedure of the tribunal, including the method of selection of the arbitrator. While arbitration is normally binding, the parties can agree in advance that the tribunal’s opinion will only be advisory.⁶⁸

Although there are few arbitral decisions on record involving environmental disputes, many international environmental agreements rely on arbitration as the primary means of dispute settlement should negotiations between the parties prove unproductive. The Baltic Sea Convention declares that states “shall” use arbitration if negotiation and mediation fail.⁶⁹ However, the agreement further notes that this will require “common agreement” among the parties to the dispute and goes no further in describing the arbitral process.⁷⁰ Nonetheless, a number of agreements outline in detail an arbitral process that must proceed at a prescribed time, even if one party is uncooperative. Under these circumstances states are able to commence the proceedings despite the recalcitrance of one party.⁷¹

2.4.2.3 Adjudication

This technique involves the referral of the dispute, by agreement or consent of the parties, to the International Court of Justice or some other standing and permanent judicial body for a binding decision, usually on the basis of international law. As in the case of arbitration, and if the rules establishing the court allow, the parties may agree to advisory or non-binding opinion rather than a binding decision, or to a declaratory judgment specifying the principles which the parties should apply in the settlement of their dispute.⁷² A declaratory judgment was issued in the North Sea Continental Shelf case.⁷³

Several environmental agreements contain provisions encouraging parties to submit their disputes to the ICJ, through usually as a last resort.⁷⁴ Disputes normally come before the court only after the parties agree to refer their differences to the court. Provision is made in Article 36 of the ICJ Statute, however, for compulsory jurisdiction when both parties have previously submitted declarations accepting the court’s jurisdiction with regard to that agreement or dispute, or when treaties in force between them authorize referral to the court.⁷⁵ The right of the court to determine its own jurisdiction enhances its ability to hear cases even when one of the parties refuses to appear.⁷⁶

3. Enforcement and Compliance Provisions: Practical Applications

The following sections will review several additional requirements, such as reporting obligations and the duty to adopt appropriate domestic legal measure that may be found in international environmental agreements. With the exception of liability provisions, which are rarely encountered, these additional requirements generally track the mechanisms discussed in preceding sections, such as consultation, monitoring and dispute settlement.

3.1 Duty to Legislate

As noted, parties to international agreements are bound by general international law to carry out their treaty obligations, which include the adoption of appropriate and necessary domestic legal measures. This helps to assure other parties that each state has taken the required domestic steps to review and implement obligations. Many agreements contain explicit language obligating states to adopt national legislation aimed at preventing and punishing violations of the agreement.

For example, the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (the London Dumping Convention or LDC) provides that each party is to take “appropriate measures to prevent and punish conduct in contravention of the Convention.”⁷⁷ Under the 1978 Protocol Relating to the International Convention for Prevention of Marine Pollution from Ships (MARPOL), parties are obligated to provide the Secretariat with texts of laws, orders, decrees, regulations and other instruments promulgated for purposes of the convention, and to establish sanctions pursuant to their domestic laws in the event of violations thereof.⁷⁸ Under the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), parties are obligated to report biennially on all legislative, regulatory and administrative measures taken to enforce the convention and to take measures to penalize trade in violation of the convention.⁷⁹

The 1972 Convention for the Protection of the World Cultural and Natural Heritage requires that parties take appropriate legal and administrative measures for the identification and conservation of “natural heritage,” including the habitats of threatened species, and that they report to the General Conference of the United Nations Educational Scientific and Cultural Organization (UNESCO) information on the legislative and administrative provisions they have adopted in accordance with the convention.⁸⁰

The United Nations Environment Programme (UNEP) Regional Seas Agreements for the Mediterranean and the Wider Caribbean generally provide that parties shall take appropriate measures to discharge their obligations, as well as report regularly to the meetings of the parties.⁸¹

The LRTAP Convention generally provides for the development of “policies” for combating air pollution, and for the exchange of information thereon, including major changes in national policies likely to cause significant changes in long-range transboundary air pollution.⁸² National policy reports are a regular agenda item at meetings of the parties.

The 1985 Vienna Convention on the Protection of the Ozone Layer, which is patterned after the UNEP Regional Seas agreements, obliges the parties to adopt appropriate legislative or administrative measures and to transmit such information to meetings of the parties.⁸³ (In response to the concerns of developing countries, the obligation to legislative, among other general obligations, was qualified by a party’s capabilities.) Interestingly, while the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer contains more detailed obligations than its parent Vienna Convention, it does not contain a specific provision on adopting and reporting on legislative measures.⁸⁴

Finally, the 1989 Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal requires that each party undertake the appropriate legal and administrative measures necessary to implement and enforce the convention including measures to prevent and punish conduct in violation thereof.⁸⁵

3.2 Reporting Obligations

International environmental agreements generally incorporate reporting requirements which affect specific aspects of the agreement’s implementation including the collection of data, record keeping, and other activities, such as the reporting of national legislative actions previously discussed. In general, reports are prepared and submitted by states at specified internals and in a specified format for distribution to other parties. Not only does the information provide assurances as to the compliance statues of states, it promotes future effective implementation by virtue of access to an expanding database.

The LDC provides a good example of contemporary reporting requirements. Parties are required to inform the Secretariat, inter alia, of any acts of dumping that occurred without a permit in cases of force majeure, of any acts of prohibited wastes in non force majeure emergency situations (Article V, 1 and 2), and of all dumping permits issued, including the nature, quantities, location and timing of permissible acts of dumping (Article VI, 1 and 4).⁸⁶

CITES requires that records be kept of all transactions involving protected species, including the types of permits authorized. Furthermore, a party must report annually to the Secretariat (Article VIII, 6 and 7). Such reports allow the parties to CITES to ascertain the volume of trade in a given species as well as to review the propriety of permits issued.

MARPOL mandates that parties report on required certificates, such as for the seaworthiness of vessels, provide a list and description of reception facilities (as they are required to provide adequate facilities), and report the penalties imposed annually (Article 11).

The LRTAP Convention contains one general reporting obligation, namely that parties exchange data on the emissions of air pollutants and the amount of emissions that cross national borders (Article 8). One the other hand, the Convention’s NOx Protocol contains detailed reporting obligations, including the reporting of levels of national annual emissions, and calculations on progress made in establishing required national emission standards for pollution control measures and the availability of unleaded fuel (Article 8).

The Montreal Protocol also contains precise reporting requirements relating to annual production and imports and exports of controlled substances (Article 7), and requires that parties notify the Secretariat of any allowed transfer of production between parties and of any addition to calculated production levels allowed by the Protocol. Reporting of the data enables the Secretariat and the parties to be assured that other parties are meeting their consumption level under the defined baselines.

Finally, the Basel Convention requires parties to report annually to the Secretariat information relating to the amount and types of wastes governed by the convention which are exported and imported. More specifically, information is required on disposal operations and efforts to reduce the amount of waste subject to transboundary movements. As one of the objectives of the convention is to minimize waste generation and transboundary movements, this information is of particular interest.

It is important to note that important requirements address many concerns, and not simply that of enforcement, and may indeed serve a dual purpose. Information provided under the agreement serves not only as a basis for determining compliance, but also as a basis for determining whether the objectives of the agreement are being met, or whether new policies need to be developed.

3.3 Specific Compliance Procedures

A number of international environmental agreements contain specific procedures relating to the review and detection of compliance and noncompliance. These procedures may take a variety of forms, including a specific role for the Secretariat. For example, under CITES, the Secretariat is empowered to study reports of the parties and request any information it deems necessary to ensure the implementation of the Convention and to focus the attention of the parties on any pertinent matter (Article XII, 2(d) and (e)). The Convention also provides for the Secretariat to notify a party directly if it believes that the Convention is not being effectively implemented, whereupon the party in question is to respond. (It may also request an inquiry, with information from the inquiry being furnished for the next meeting of the parties) (Article X). The CITES example represents one of the more independent Secretariats in the environmental field. Frequently, the Secretariat’s authority is more limited.

The marine field incorporates some of the most highly developed enforcement and compliance procedures. It is in marine environmental agreements that actual inspection procedures involving other parties have been developed. Other environmental agreements must rely on reporting rather than individual or collective “on-site” verification. MARPOL provides that the parties should cooperate in the detection of violations and in the enforcement of the agreement with respect to environmental monitoring, reporting, and the accumulation of evidence (Article 61). MARPOL also establishes a port state enforcement regime whereby the port state may inspect on its own volition, or where the flag state has concurred after appropriate notification (Article 6, (4) and (5)). Finally, MARPOL sets out detailed requirements for the reporting of discharges of harmful substances, including reporting requirements for a party’s maritime inspection authorities (Article 8 and Protocol I). The U.S. Coast Guard, for example, conducts routine surveillance operations and reports discharges through the U.S. State Department to flag states. This is consistent with the obligations placed on all parties to furnish flag states information on violations committed by their vessels (Article 6(3)).

The Secretariat of the London Dumping Convention is also responsible for consulting with the parties by providing recommendations (Article XIV, 3) and has, in the past, brought a number of implementation issues to the parties’ attention. The LDC also requires to parties not only to punish violators of the Convention (Article VII), but also to cooperate in developing procedures for the reporting of vessels which are observed dumping in violation of the Agreement (Article VII, 3). (Procedures have been proposed but never adopted.) Regarding radioactive waste disposal at sea, in 1977 the members of the OECD set up within the NEA a multilateral consultation and surveillance mechanism to promote the objectives of the LDC.⁸⁷ It sets out detailed notification, assessment reporting and inspection procedures. It is consistent with the IAEA’s revised recommendations on the disposal of low-level radioactive waste under the LDC, and calls for international observation of the loading and disposal of such waste to ensure compliance with the Convention.⁸⁸

The air pollution field has not yet experienced the development of detailed compliance procedures. The Montreal Protocol contains an article on noncompliance (Article 8), which requires parties at their first meeting to consider and approve procedures and institutional mechanisms for establishing noncompliance and the treatment of parties in noncompliance. (This article was the result of the inability of the negotiators to agree on such procedures during the conclusion of the Protocol.) To resolve the issue, the parties set up a working group which has recommended the establishment of an “Implementation Committee” which will report to the meeting of parties with recommendations.

Finally, the Basel Convention contains a specific article on verification which provides that a party suspecting a breach informs the Secretariat and the offending party. The Secretariat, in turn, will inform other parties. This provision, while general, may assist in detecting illegal traffic, a major preoccupation of many of the convention’s negotiators.

3.4 Dispute Settlement

Ultimately, in cases where states have not been able to resolve questions relating to compliance, they may have recourse to some form of third party dispute resolution process. As discussed, this can range from some form of consultation, to mediation, or even formal adjudication. For the most part, dispute settlement mechanisms are fairly general in many international environmental agreements. Some simply reiterate Article 33 of the UN Charter which calls upon parties to resolve their disputes through peaceful means including, inter alia, negotiation, conciliation, or arbitration.⁸⁹ There is no mandated procedure and a party is free to decline a third party settlement (See, for example, Article 13 of the LRTAP Convention). On the other hand, the 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (Article VIII),⁹⁰ and its 1973 Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil, provide for consultation procedures and arbitration. MARPOL provides for conciliation and binding dispute settlement mechanisms (Article XI); in 1978, the parties adopted amendments to the convention providing for compulsory and binding arbitration. (These amendments have not, however, entered into force, and may never enter into force.)

The Vienna Convention and its Montreal Protocol employ a conciliation procedure and an “opt in” procedure, whereby states must affirmatively accept compulsory arbitration or referral to the International Court of Justice.⁹¹ UNEP Regional Seas agreements generally have non-compulsory dispute settlement procedures with the potential for referral to arbitral procedures if the parties agree. Finally, the Basel Convention (Article 20) contains an “opt in” procedure like the Vienna Ozone Layer Convention.⁹²

In conclusion, in the field of international environmental agreements, dispute resolution mechanisms are largely employed on a state-to-state basis rather than as part of an institutional process. It is also worth pointing out that, for the most part, the dispute settlement mechanisms contained in these agreements are rarely activated and more effort goes into their negotiation than their use.

4. Selected Non-Environmental Agreements

The final section of this paper will summarize several important agreements from other fields which are relevant to the present discussion. These include the Law of the Sea, Antarctica-related treaties, and arms control agreements.

4.1 Law of the Sea

The 1982 UN Convention on the Law of the Sea, which is not in force, is generally regarded as reflecting customary international law, with the exception of its deep-seabed provisions. It contains a number of obligations including the protection of the marine environment.⁹³ In the simplest terms, the Convention contains a mix of flag, port and coastal state enforcement provisions which greatly expand the enforcement authority of coastal states in the Exclusive Economic Zone (EEZ) beyond the scheme contained in MARPOL.⁹⁴ Generally, coastal states are authorized to enforce international standards in their EEZ. (These international standards are understood to be those adopted by the IMO.) With respect to foreign flag vessels, including inspection and actual detention, these powers are governed by a system of procedural safeguards embodied in Section 7 of Part XII and ultimately by Part XV’s compulsory dispute settlement procedure.

4.2 Antarctic Treaty System

The Antarctica Treaty System comprising the 1959 Antarctic Treaty and its recommendations and subsidiary agreements is an important environmental regime in its own right.⁹⁵ Designed to defuse the issue of claims to sovereignty in the Antarctic and to preserve it for peaceful purposes, the Antarctic Treaty contains unilateral rights of inspection (Article VII) to ensure that its peaceful purposes and environmental protection regime are maintained. Reports of such inspections are an increasingly important topic of discussion at treaty meetings. It also contains a rather unique provision calling upon the contracting parties to exert appropriate efforts consistent with the UN Charter to ensure that no state engages in activities in Antarctica contrary to the terms of the treaty (Article X).

Under the 1980 Convention for the Conservation of Antarctic Marine Living Resources, there is established an ecosystem approach to fishery activities in Antarctic waters; reporting requirements on harvesting activities (Article XX); a role for the Commission in monitoring compliance whereby it can draw to the attention of all parties an issue of implementation by a party (Article X); an obligation to ensure compliance with the convention including the imposition of sanctions (Article XXI), and a provision calling for the development of observation and inspection procedures for harvesting activities (Article XIV).⁹⁶

Finally, there is the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities (the Antarctic Minerals or Wellington Convention), which, though not in force, establishes a regime to regulate mineral resource exploration and exploitation in Antarctica.⁹⁷ The Convention establishes a variety of institutions that have the responsibility of deciding on whether to allow mining activities to go forward. There are detailed reporting, monitoring inspection and enforcement provisions (Articles 37-38, 47 and 52) with a mix of institutional and state compliance mechanisms including procedures for suspension and cancellation of exploitation rights. There are also detailed compulsory and binding dispute settlement procedures involving state-to-state and institutional mechanisms. Many enforcement and compliance procedures worked out in the Convention were the result of compromises between states claiming, and states not recognizing, sovereignty in Antarctica.

4.3 Weapons

The 1968 Treaty for the Non-Proliferation of Nuclear Weapons sets for a regime for preventing the spread of nuclear weapons.⁹⁸ Included are procedures for scrutinizing the transfer of nuclear materials, including a detailed system of IAEA managed inspections and safeguards.

One of the best examples of a contemporary international agreement incorporating extensive compliance monitoring mechanisms is the 1971 Sea Bed Treaty.⁹⁹ While not strictly an environmental convention, one of the express purposes of the prohibition on the placement of nuclear and other weapons on eh ocean floor is the furtherance of exploration and other peaceful purposes. Environmental protection motivations thus are clearly preeminent. Article III of the treaty provides for verification of compliance by any party through direct observation and other means. If noncompliance with any provision is suspected, parties are required to consult with a view to resolving any doubts. If any party still remains dissatisfied, other states shall be notified whereupon they will seek collectively to ensure verification of compliance.¹⁰⁰ If necessary, on-site inspections are appropriate. Upon the conclusion of any collective action, a report outlining the findings of the parties is published for the benefit of all parties.¹⁰¹ In addition to the provisions addressing collective action, Article III, paragraph 4 permits referral of the dispute directly to the UN Security Council in the event the signatories are unable to resolve their differences.

The Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques¹⁰² resulted principally from the realization that scientific research into environmental modification techniques, such as the genetic engineering of chemical neutralizing agents, could be adapted for military use. Compliance with this agreement is accomplished primarily through consultation,¹⁰³ though the lodging of a complaint with the UN Security Council is also facilitated.¹⁰⁴ While neither of these provisions is particularly unique, the agreement also provides for the formal of a Consultative Committee of Expert, which consists of technical exports in the field who represent each of the parties.¹⁰⁵ The Committee is responsible for making appropriate findings of fact with respect to any dispute that arises between the parties. While the role of the Committee is purely advisory in nature, the experts have the right to request relevant data from any party.¹⁰⁶

4.4 South Pacific Nuclear Free Zone Treaty

On August 6, 1985, the South Pacific Forum, a body comprising the countries of the South Pacific region, endorsed the South Pacific Nuclear Free Zone Treaty and opened it for signature. The principal goals of the agreement are the maintenance of a prohibition on all nuclear weapons in the region and the continuance of the ecological status quo. For the purposes of verifying compliance with all provisions of the agreement, the parties have established a “control system” which provides for the regular exchange of technical information, consultation, and a complaints process.¹⁰⁷

If a dispute is not resolved after negotiations between two or more parties, any party may bring a complaint before a Consultative Committee, which consists of one representative from each state.¹⁰⁸ If the Committee determines that a complaint has merit, that body will initiate an inspection to determine all relevant facts.¹⁰⁹ The agreement provides for unconditional free access to members of the inspection team. At the conclusion of an inspection, the inspection team must provide a written report to the Committee indicating whether or not a breach has occurred. If so, the parties to the agreement are required to “meet promptly at a meeting of the South Pacific Forum.”¹¹⁰

Endnotes/References

1. See F. Kirgis, Current International Law (1985).

2. See N. Leech and C. Oliver, Materials on the International Legal System, 931.

3. A/Conf. 39/27. While the United States is not a party to the convention, the convention is regarded as being generally reflective of customary international law.

4. See F. Kirgis, International Organizations 433-43 (1983).

5. Consider, for example, the U.S.-Canada acid rain dispute which, while public, has not been brought to formal dispute settlement procedures, or the French-New Zealand dispute over the sinking of the Greenpeace vessel the “Rainbow Warrior.”

6. See A. Kiss, Survey of Current Developments in International Environmental Law 12 (1976). See also Benedick, “Environment in the Foreign Policy Agenda,” Department of State Bulletin 55 (June 1986).

7. See Lutz, “Directions of Environmental Law in the International System: An Assessment of Tasks and Challenges for Lawyers,” in Environmental Pollution and Individual Rights: An International Symposium 192, 194 (1978).

8. See L. Caldwell, Concepts in Development of International Environmental Policies, International Environmental Law 12 (1974).

9. See Corfu Channel Case (U.K. v. Alb.), 1949 ICJ 4. See also Principle 21 of the Stockholm Declaration.

10. See Caldwell, supra note 3 at 12-13.

11. See W. Gormley, Human Rights and Environment: the Need for International Cooperation 217 (1976).

12. See, e.g., “Convention on the Protection of the Marine Environment of the Baltic Sea Area,” 22 March 1974, in ILM 13 at 547.

13. See, e.g., A. Springer, The International Law of Pollution 32 (1983).

14. See J.L. Hargrove, “Post-Stockholm: Influencing National Environmental Law and Practice Through International Law and Policy,” in Proceedings 66 (American Society of International Law) (1972).

15. Article 60(2)(b) of the Vienna Convention on the Law of Treaties.

16. See Chorzow Factory (Jurisdiction) (1928), P.C.I.J., Series A, no.8 at 21.

17. See E. Zoller, Enforcing International Law Through U.S. Legislation 66 (1985).

18. Id.

19. See supra note 10.

20. See Zoller, supra note 12 at 67.

21. Id.

22. 16 U.S.C. §1821 (e)(2)(A), (B).

23. See I. Sinclair, The Vienna Convention on the Law of Treaties 99 (1984).

24. See supra note 12 at 69.

25. See Chorzow Factory (Indemnity) (1928), PCIJ, Series A., no. 17 at 29.

26. Id. at 47.

27. See, e.g., “