At the seventh session of the Conference of the Parties (COP-7) to the UN Framework Convention on Climate Change (UNFCCC), the Convention's parties resolved many of the outstanding issues necessary to bring the Kyoto Protocol into operation. These agreements are contained in the report of COP-7 known as the Marrakesh Accords. One of the last pieces of the Kyoto machinery to be designed was the compliance system: a set of rules, procedures and institutions intended to 'facilitate, promote and enforce compliance' with the Protocol's commitments.1 The compliance system represents over a decade of effort by climate change negotiators to tailor a mechanism to fit a regime whose features continuously shifted shape. The design choices that were made provide a crucial insight into the way in which delegations perceive the legal and political character of the their commitments under the Protocol.

This chapter explores, through a non-sequential, thematic negotiating history of the compliance-related elements of the Marrakesh Accords, the theoretical and political positions that underpin the Kyoto Protocol's compliance system. The starting point for the negotiations was Article 18 of the Protocol, which provides that:

The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first session, approve appropriate and effective procedures and mechanisms to determine and to address cases of non-compliance with the provisions of this Protocol, including through the development of an indicative list of consequences, taking into account the cause, type, degree and frequency of non-compliance. Any procedures and mechanisms under this Article entailing binding consequences shall be adopted by means of an amendment to this Protocol.

Other than the procedural obligation to prepare a compliance system in time for adoption at the first session of the Conference of the Parties serving as the Meeting of the Parties (COP/MOP), the Article 18 mandate had only a limited impact on the outcome of the negotiations.2 Instead, the negotiations were shaped by a series of design choices centred on the following themes:

1 The experience of the Convention parties in designing non-confrontational, facili-tative approaches to non-compliance, and the shift in attitude of the majority of delegations towards the need for a 'strong' compliance system in light of the Kyoto Protocol's binding and quantified commitments and the introduction of market-based flexibility mechanisms into the climate regime.

2 The influence and attitudes of Annex I party delegations for and against the development of a strong compliance system, including domestic experiences in the US, regional approaches in the EU and the tension between 'due process' and 'automaticity'.

3 The influence and attitudes of developing country party delegations for and against the development of a strong compliance system, and tensions between progressive environmental objectives and concerns about the erosion of national sovereignty.

4 The role and contribution of non-governmental organizations (NGOs) in the development and testing of proposals during the negotiations, focusing on proposals for tough penalties and transparent procedures.

5 The impact of the fragmented structure of the Buenos Aires Programme of Action negotiations on the linkages between the compliance system, the Kyoto mechanisms and the reporting and review procedures.

6 The issue that both launched and ended the negotiations on a compliance system for the Kyoto Protocol: the legally binding character of the enforcement consequences.

After a brief linear history of the negotiations, and an overview of the compliance system, each of these themes is explored in more detail.

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