The compliance system's procedures are designed to promote effectiveness in decision making and afford due process protections to concerned parties. As already indicated, due process guarantees have been strengthened when hard enforcement consequences are involved. The Marrakesh Accord's compliance procedures, set out in Sections VII, VIII and IX of Decision 24/CP.7, seek to guarantee due process by:

1 setting time limits for decisions;

2 requiring a preliminary examination of the question of implementation;

3 requiring preliminary findings to be communicated to the party concerned for comment;

4 requiring notification to the party at the different stages of the process;

5 making information available to the party;

6 allowing the party to designate persons to represent it;

7 allowing comments from the party;

8 allowing the concerned party to request a hearing; and

9 requiring decisions to include conclusions and reasons.

More restrictive time limits are set in Section X on expedited procedures in cases of suspension of eligibility to use the flexibility mechanisms in Articles 6, 12 and 17. These stricter time limits are designed to protect parties' interests in returning to the market as quickly as possible.

A significant difference between the compliance system under the Kyoto Protocol and that employed by several international courts is that there is no particular arrangement within the Protocol's process to address situations in which a member of the Enforcement Branch is of the nationality of a party involved in a compliance proceeding, or where there are other prima facie reasons for questioning a member's objectivity. The ICJ provides, for example, for the appointment of an ad hoc judge to allow both parties to a dispute to be represented on the bench. In contrast, in disputes before the WTO, citizens of Member States whose governments are parties to a dispute are excluded from WTO Panels unless the parties to the dispute agree otherwise.53 The failure of the compliance system to deal with this issue might be seen as a weakness of the Enforcement Branch. On the other hand, it may reflect the implicit trust that the designers have placed in the independent status of the members of the two branches, or the fact that the Enforcement Branch was not considered to be the equivalent of a court or an arbitral panel.

The voting regulations present a special feature of the Compliance Committee's procedure, and particularly the Enforcement Branch's regulations. The Committee is required to make all efforts to reach consensus, but if this fails, decisions may be made by a three-quarters majority of the members present and voting.54 The fact that substantive decisions may be taken by majority voting rather than by consensus contributes to effective decision making, and is itself remarkable, considering the continuing impasse over majority voting on substantive issues in the Rules of the Procedure in the climate change regime. However, a decision by the Enforcement Branch requires also a double majority, i.e., a majority among both Annex I and nonAnnex I parties. This system seeks to accommodate the concern that Annex I parties should not be judged by the non-Annex I parties' majority in the Enforcement Branch. It may, however, be argued that the double majority requirement will not provide a fully satisfactory guarantee for Annex I parties: while they may be able to block a decision of non-compliance, the shaming effect of a three-quarters majority remains.

It could be asked whether a party accused of non-compliance should benefit from the principle afforded to individuals under penal procedure: that guilt must be proven beyond reasonable doubt. Although no such requirement is explicitly articulated in the Marrakesh procedures, nevertheless, much the same burden of proof has been structured to provide protections for a party accused of non-compliance, through provisions on self-reporting, review by ERTs and the Compliance Committee's due process guarantees, though the double majority voting requirement stops short of requiring complete consensus. Regardless, the decisions of the Enforcement Branch are not formal decisions of guilt.

In addition, there is a limited possibility for appeal to the COP/MOP against final decisions of the Enforcement Branch on due process grounds, where these decisions relate to Article 3 (1) of the Kyoto Protocol, i.e. the provision on quantified limitation and reduction of greenhouse gas emissions. Only aspects relating to denial of due process may be appealed, which suggests that the assessment of the factual evidence, the legal interpretation applied to that evidence or the consequences applied, are not all subject to challenge.55 Finally, a three-quarters majority in the COP/MOP is required to override a decision of the Enforcement Branch, and the COP/MOP may only refer the case back to the Enforcement Branch. It may not make its own decision on whether non-compliance has occurred, and what may be the relevant consequences.56

Although it might be argued that a broader scope for appeal would provide additional due process guarantees, this is only the case if such appeals are addressed to a competent judicial body, rather than to a political body such as the COP/MOP. The reduction of the political role of the COP/MOP is thus itself a guarantee of due process. The limitation on the scope for appeal and the requirement of the super-majority will in practice allow the COP/MOP a very limited role in individual cases of non-compliance. The requirement of a large qualified majority in order to overturn decisions of the Enforcement Branch has similarities to the WTO process, where decisions of a Panel (if they are not appealed) and of the Appellate Body will stand, unless overturned by a consensus of the WTO membership.

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