Response Much facilitation and little enforcement

There are some basic similarities between the institutions examined with respect to the triggering of non-compliance procedures and the initial steps of the response process. First, within both the CLRTAP and the Montreal Protocol regimes, procedures can be triggered by submissions by non-complying parties themselves, as well as by other parties and the Secretariat. In both contexts, an increasing number of non-compliance cases have been seen in recent years. Not surprisingly, the handling of non-compliance was first experienced in the ozone context. The non-compliance procedure was invoked for the first time in 1995, with the looming non-compliance of five CEITs (Belarus, Bulgaria, Poland, Russia and Ukraine), who invoked the procedure themselves (Victor, 1998, p 155). The 'CEIT problem' continued in the years that followed. In 1998, for example, the Implementation Committee discussed the non-compliance of nine parties: Azerbaijan, Belarus, Czech Republic, Estonia, Latvia, Lithuania, Russian Federation, Ukraine and Uzbekistan.50 This time, the noncompliance procedure was triggered by the Secretariat. At the 2001 MOP, the Implementation Committee concluded that 24 parties appeared to be in various stages of non-compliance - most with respect to increasing CFC consumption.51 Of these 24 non-compliant parties, 16 were Article 5 parties.

The overall nature of the response taken by the ozone regime has clearly been one of facilitation. As a general basis for response within this regime, an 'indicative list' of measures was produced by the MOP in 1992. This list included rendering 'appropriate assistance', including technical and financial assistance, and assistance in the collection and reporting of data; issuing cautions; and the suspension of treaty rights (Wiser, 1999, p28). In practice, the regime has leaned on a combination of the first two of these three basic options. The approach taken within the Implementation Committee to the CEIT cases in the mid-1990s emphasized various forms of assistance to secure compliance - without offering extensions or adjustments of the regulatory obligations undertaken.52 This established a course of action (Greene, 1996) and approach that has continued.53 For instance, when the 1998 MOP reviewed the non-compliance of eight parties, the parties recommended that the Global Environment Facility continue to assist the non-compliers, 'while cautioning them that stricter measures [would] be imposed if they [did] not adhere to their new benchmarks for phase-out'.54 Russia has been given special attention and facilitated assistance. Prior to the 1998 MOP, ten donors pledged a special contribution of US$19 million to help shut down Russian CFC and halon production facilities.55 This led Russia, at the 2001 MOP, to warmly thank various donor countries and the World Bank for assistance in phasing out ODS production.56

However, these various forms of assistance have been accompanied by cautioning calls for clarifications and performance improvements, using transparency to put a certain subtle pressure on the parties. In fact, at the MOP in 2001, a quite sharp tone can be noted: 'For the Parties with economies in transition whose non-compliance with the Protocol has previously been determined by the Parties, the Committee requested the Secretariat to send strongly worded letters alerting them to their continuing non-compliance and requesting [additional] information'.57 However, a suggestion at the same meeting, from a group led by the US, that Multi lateral Fund assistance might in the future be withheld from non-compliers, was rejected.58 According to Norwegian negotiators, given the established and tight relationship between assistance from the Fund and phase-out activities in the developing countries, this issue is a very complex and sensitive one.59

Within the CLRTAP, the explicit and specific discussion of countries' noncompliance with protocols is of a more recent nature. In 2000 the Implementation Committee for the first time considered a case of possible non-compliance, as Slovenia warned about its potential inability to comply with the 1994 Sulphur Protocol.60 This was followed in 2001 by several cases of non-compliance with the 1991 VOC Protocol. Norway, Finland and Italy came forward with submissions about their non-compliance.61 The CLRTAP's response to cases of non-compliance must clearly be characterized as a 'managerial' one. For instance, in the case of Slovenia, the Executive Body's response includes an invitation to other parties 'to examine ways in which they could assist Slovenia in reducing emissions from the respective plant, for instance through the provision of equipment'.62 In the case of Norway, which had failed to meet the VOC Protocol target, the Implementing Committee 'expresse[d] its concern at the failure' and 'urge[d] Norway to fulfil its obligations ... as soon as possible'.63

The EU stands out in principle as the most clear enforcement institution of the three examined in this context of response. This is primarily related to the possibility within the EU system of proceedings before the European Court of Justice (ECJ) and the availability of fines for non-compliance. Although 90 per cent of cases of potential non-compliance are settled by communication and 'compliance bargaining' between the Member States and the Commission, there has been an increasing tendency in the recent years of cases going all the way to the ECJ. Still, in the field of environmental politics, there is only one example so far of a state actually being fined.64 In the case of the climate change monitoring mechanism, the Commission has adopted a clear managerial approach. For example, when the second evaluation of reporting revealed a number of shortcomings, the Commission responded by considering a specific workshop on the production of emission trajectories, and the Monitoring Mechanism Committee envisaged a working group to provide assistance (Hyvarinen, 1999, p193).

However, not surprisingly, in the EU emission trading context, a much more enforcement-oriented approach is in the pipeline. In the EU's emissions trading directive, the EU has set a financial penalty at a rate of 2

emitted in the pre-Kyoto period, and a penalty of €100 during the Kyoto Protocol's first commitment period. The experience and success of the US sulphur trading scheme may have played a key part in the inclusion of financial penalties in the EU emissions trading scheme, as the US programme's excellent compliance record was acknowledged in the draft directive.65 When the draft directive was put forward, the NGO community warmly welcomed the possible inclusion of a 'strong, clear compliance system', arguing that without such a system 'companies will not invest in emission cuts or seek to buy allowances' (Climate Network Europe, 2002).

0 0

Post a comment