1. 26 ILM (1987) p. 1529 (Convention) and p. 1550 (Protocol)Google Scholar; see also http://www.unep.ch/ozone Provided for in Art. 8 of the Protocol, the NCP was finalised at the fourth meeting of the parties in 1992: see Decision IV/5.

2. The 1994 Second Sulphur Protocol (33 ILM (1994) p. 1542)Google Scholar entered into force on 5 August 1998 and was the first Protocol to LRTAP to require the mandatory application of emission limit values set forth in the Protocol; the 1991 VOC Protocol (31 ILM (1992) p. 568)Google Scholar entered into force on 29 September 1997. In 1997 an Implementation Committee was established for review of compliance by the parties with the protocols to LRTAP by Decision 1997/2 of the Executive Body of the Convention. The structure, function and procedures set out in that decision establishing the Implementation Committee have subsequently been adopted for review of compliance in accordance with Art. 3(3) and Art. 7, respectively, of the VOC and Second Sulphur Protocols: Decisions 1997/3 and 1998/6. At the end of 1999 an eighth Protocol was adopted, the Gothenburg Protocol to Abate Acidification, Eutrophication and Ground-Level Ozone, Art. 9 of which provides for regular review of the compliance of each party with the obligations of the Protocol and likewise utilises the Implementation Committee established by Decision 1997/2. By Decision 1998/3, any amendment to Decision 1997/2, and any other decision of the Executive Body pertaining to the Implementation Committee or its procedures, requires the consensus of the parties. See further http://www.unece.org/env/lrtap/conv

3. 32 ILM (1993) p. 1069Google Scholar and http://www.ospar.org/ See Art. 23, which empowers the Commission established pursuant to Art. 10 to assess the compliance of Contracting Parties and to call for steps to bring a non-complying Contracting Party back into compliance. These provisions have not yet been implemented, with the Convention only entering into force on 25 March 1998.

4. 31 ILM (1992) p. 1330 (Convention)Google Scholar and 37 ILM (1998) p. 22 (Protocol)Google Scholar and http://www.unfccc.de/ COP-4 established a Joint Working Group on Compliance which produced a draft text for consideration at COP-6 (2000), which was suspended without reaching an agreement on, inter alia, this issue. COP-6 bis is due to be held in the second half of 2001. See further n. 15.

5. A number of other recent agreements have, or are contemplating the use of non-compliance procedures. Examples of the latter include the 1989 Basel Convention on the Transboundary Movement of Hazardous Wastes and their Disposal and the 1980 Convention on the Conservation of Antarctic Marine Living Resources: see further Redgwell, C., ‘Protection of Ecosystems under International Law: Lessons from Antarctica’, in Boyle, A. and Freestone, D., eds., International Law and Sustainable Development (Oxford, Oxford University Press 1999) Ch. 9Google Scholar. Non-compliance procedures are also catered for in the recently concluded regional Aarhus Convention on Public Participation 1998 (Art. 15), the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Art. 17) and the 2000 Cartagena Protocol on Biosafey to the 1992 Convention on the Conservation of Biological Diversity (Art. 34). Non-compliance procedures have been established by the International Commission for the Conservation of Atlantic Tuna (ICCAT): see further Carr, C., ‘Recent Developments in Compliance and Enforcement for International Fisheries’ 24 Ecology Law Quarterly (1997) p. 847, at pp. 847–860.Google Scholar

Churchill and Ulfstein argue that ‘subsidiary bodies for operating noncompliance mechanisms could also be established without an explicit provision in the [multilateral environmental agreement] on the basis of “implied powers”.’ Churchill, R.R. and Ulfstein, G., ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’, 94 AJIL (2000) p. 623, at p. 644.CrossRefGoogle Scholar

6. As the Third Report of the Special Rapporteur on State Responsibility makes clear, the VCLT and state responsibility operate in separate spheres, a distinction maintained even where suspension of treaty obligations are resorted to as a countermeasure in response to a non-material breach of treaty: cf., Third Report (2000), A/CN.4/507/Add.3, pp. 16–17, paras. 324–325; see also the Case Concerning the Gabcikovo/Nagymaros Project (Hungary/Slovakia), 25 September 1997, ICJ Rep. (1997) at pp. 38–39Google Scholar, para. 47 wherein the law of treaties and the law of State responsibility are described as ‘two branches of international law [that] obviously have a scope that is distinct. A determination of whether a convention is or is not in force, and whether it has or has not been properly suspended or denounced, is to be made pursuant to the law of treaties. On the other hand, an evaluation of the extent to which the suspension or denunciation of a convention, seen as incompatible with the law of treaties, involves the responsibility of the State which proceeded to it, is to be made under the law of State responsibility.’

7. Indeed, this may be all that is provided for in many agreements, including those recently concluded: see for example, Art. 27 of the 1992 Convention on Biological Diversity which provides for traditional dispute settlement, viz. negotiation, good offices, mediation, arbitration and/or the ICJ or conciliation. The 2000 Biosafety Protocol to the CBD, however, provides in Art. 14 for the negotiation of a noncompliance mechanism. Like the CBD, the 1994 Convention to Combat Desertification contains a dispute settlement provision (Art. 28); however, Art. 27 provides that ‘[t]he Conference of the Parties shall consider and adopt procedures and institutional mechanisms for the resolution of questions that may arise with regard to the implementation of the Convention,’ thus providing the legal foundation for the subsequent development by the parties of compliance procedures and mechanisms.

8. A feature of NCPs which is sometimes overlooked as pointed out by e.g., Adede, A.O., ‘Avoidance, Prevention and Settlement of International Disputes’Google Scholar, in Sun, Lin, Lal, Kurukulasuriya and Schlingemann, F. eds., UNEP's New Way Forward: Environmental Law and Sustainable DevelopmentGoogle Scholar (52 et seq; Loibl, G., ‘Comment on the Paper of A. Adede’, in Lang, W., ed., Sustainable Development and International Law (London, Graham & Trotman 1995) pp. 125 et seqGoogle Scholar; idem ‘Dispute Prevention and Possible Legal Instruments in the Field of the Environment’ in Österreichische Aussenpolitik Dokumentation Sondernumer, ‘UN Green Helmets’; Gresham, Z.O., Schurz, J.M., ‘Dispute Avoidance and Dispute Resolution in International Environmental Agreements: An Introduction’, 9 Environment and Trade (1994).Google Scholar

9. Chinkin, C., ‘Alternative Dispute Resolution under International Law’, in Evans, M., ed., Remedies in International Law, The Institutional Dilemma (Oxford, Hart Publishing 1998) p. 128.Google Scholar

10. An interesting issue not considered here is what constitutes compliance. Kingsbury rightly critiques the literature as setting up a (false) dichotomy between compliance and non-compliance, when in practice it is, at best, a continuum: see further Kingsbury, B., ‘The Concept of Compliance as a Function of Competing Conceptions of International Law’, 19 Michigan JIL (1998) p. 345Google Scholar. Nor should compliance be viewed as synonymous with effectiveness: see further n. 34 below. During debate of the Special Rapporteur's Second Report on State Responsibility (1999) the suggestion that ‘non-compliance’ be employed in the draft articles to refer to a failure to carry out an obligation not involving a breach of international law was rejected: 1999 ILC Rep., para. 115, reproduced at http://www.un.org/law/ilc/reports/1999

11. In addition to the sources cited infra, see generally Szell, P., ‘The Development of Multilateral Mechanisms for Monitoring Compliance’Google Scholar, in Lang, ed., op. cit. n. 8, at Ch. 7; Cameron, J., Werksman, J. and Roderick, P., eds., Improving Compliance with International Environmental Law (London, Earthscan 1996)Google Scholar; Handl, G., ‘Compliance Control Mechanism and International Environmental Obligations’, 5 Tulane JIL (1995) p. 29Google Scholar; Victor, D.G., Raustiala, K. and Skolnikoff, E.B., eds., The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (Cambridge MA, MIT Press 1998)Google Scholar; Weiss, E. Brown and Jacobson, H.K., eds., Engaging Countries: Strengthening Compliance with International Environmental Accords (Cambridge MA, MIT Press 1998)Google Scholar; Wolfrum, R., ‘Means of Ensuring Compliance with and Enforcement of International Environmental Law’, 272 RdC (1999) pp. 9–154Google Scholar; Schally, H.M., ‘The Role and Importance of Monitoring and Non-Compliance procedures in International Environmental Regimes’Google Scholar, in The Ozone Treaties and Their Influence in on the Building of International Environmental Regimes, Special Issue: Österreichische Aussenpolitsche Dokumentation; Federal Ministry for Foreign Affairs, Vienna, Austria (1996); Szell, P., ‘Implementation Control: Non-Compliance Procedure and Dispute Settlement in the Ozone Regime’Google Scholar in ibid.; Victor, D.G., ‘The Early Operation and Effectiveness of Montreal Protocol's Non-Compliance Procedure’, IIASA Paper (May 1996)Google ScholarWerksman, J., ‘Designing a Compliance System for the UN Framework Convention on Climate Change’, in Cameron, J., Werksman, J. and Roderick, P. eds., Improving Compliance with International Environmental Law (London, Earthscan 1996)Google Scholar; Chayes, A. and Chayes, A., The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge MA, Harvard University Press 1995)Google Scholar; Chayes, A. and Chayes, A., ‘On Compliance’, 47 International Organisation (1993) pp. 175–205CrossRefGoogle Scholar; Chayes, A. and Chayes, A., ‘Compliance without Enforcement: State Behaviour under Regulatory Treaties’, Negotiations Journal (1991) pp. 311–330.Google Scholar

12. These objectives are confirmed by the conclusions of the Group of Legal Experts under the Montreal Protocol which state that a NCP ‘allows and encourages the parties to assist each other in the implementation of the control measures agreed by them and to a certain degree to prevent them from referring cases of breaches of the Protocol directly to confrontational settlement of disputes procedure.’ Ms. C. Bjorklund, the first President of the Montreal Protocol Non-Compliance Implementation Committee, described the Montreal Protocol NCP ‘as an assisting rather than dispute solving body which is to act as a new forum of settling disputes outside the traditional judicial framework’: cited in Rummel-Bulska, I., ‘Implementation Control: Non-Compliance and Dispute Settlement: From Montreal to Basel’, in Lang, W., ed., The Ozone Treaties and Their Influence on the Building of International Legal Regimes; Special Issue: Õsterreichische aussenpolitische DokumentationGoogle Scholar. See also the Declaration by the Ministers of the Environment of the Region of the UNECE and the Member of the Commission of the EC Responsible for the Environment, 30 April 1993, at p. 8, para. 23.1.

13. Handl, G., ‘Controlling Implementation of Compliance with International Environmental Commitments: the Rocky Road from Rio’, 5 Colorado JEL&P (1994) p. 305, at p. 329Google Scholar. Of course, incrimination for non-compliance may be one mechanism to achieve a return to compliance, analogous to ‘name and shame’ techniques under international human rights instruments, for example, but going further in providing for specific sanctions, such as trade sanctions. See further discussion in Wolfrum, op. cit. n. 11, at pp. 56 et seq. (‘Enforcing Compliance by Confrontational Means’).

14. Werksman, J., ‘Compliance and the Kyoto Protocol: Building a Backbone into a ‘Flexible’ Regime’, 9 YIEL (1998) p. 48, at p. 56Google Scholar (‘Theoretical Approaches to Non-Compliance Responses’). In these admittedly crude characterisations Werksman explicitly relies on the extensive literature on compliance with multilateral environmental agreements, in particular Danish, K., ‘Management v. Enforcement: The New Debate on Promoting Treaty Compliance’, 37 Virginia JIL (1997) p. 789Google Scholar (enforcement) and Chayes and Chayes, op. cit. n. 11. (‘managerialist’).

15. ‘Procedures and Mechanisms Relating to Compliance Under the Kyoto Protocol: Text proposed by the Co-Chairmen of the Joint Working Group on Compliance’, FCCC/SB/2000/11, 24 October 2000, Section I, para. 1 and Section II, para. 2, respectively.

16. See generally, Heister, J., Mohr, E., Stahler, F., Stoll, P.T. and Wolfrum, R., ‘Strategies to Enforce Compliance with an International CO2 Treaty’, 9 International Environmental Affairs (1997) p. 22, at pp. 23–24 (‘reasons for non-compliance’).Google Scholar

17. Mitchell identifies three principal sources of non-compliance: preference, incapacity and inadvertence. See Mitchell, R.B., ‘Compliance Theory: an Overview’Google Scholar, in J. Cameron et al., eds., op. cit. n. 11, Ch. 1, at pp. 11–13.

18. As Marauhn observes, ‘compliance control is a device for generating confidence of states that the benefits of respecting and implementing the obligations of the treaty outweigh the costs’. Marauhn, T., ‘Towards a Procedural Law of Compliance, Control in International Relations’, 56 ZaöRV (1996) p. 698Google Scholar; see also Redgwell, C., ‘Non-Compliance Procedures and the Climate Change Convention’, in Chambers, W. Bradnee, ed., Global Climate Governance: Inter-linkages between the Kyoto Protocol and other Multilateral Regimes (UNU/GEIC/IAS 1998)Ch. 3, p. 14.Google Scholar

19. As is the case, for example, under the Second Sulphur Protocol: see para. 5 of Decision 1997/2. For further discussion of the Montreal Protocol procedure, see below. Wolfrum compares NCPs with the State complaint procedures under the International Covenant on Civil and Political Rights (Art. 41), the Convention on the Elimination of Racial Discrimination (Art. 11), and the Torture Convention (Art. 21): Wolfrum, loc. cit. n. 11, at p. 38 n. 45. The Multilateral Consultative Process envisaged under Article 13 of the 1992 United Nations Framework Convention on Climate Change provides, inter alia, that the COP may trigger this process. There is no formal conduit for NGOs to access the compliance procedures under the Montreal Protocol nor under the proposed Kyoto Protocol procedure, though the latter does envisage (on the current 2000 draft) the possibility of NGOs providing information relevant to compliance issues: supra n. 15, Section III.

20. See further Crawford, J., ‘Revising the Draft Articles on State Responsibility’, 10 EJIL (1999) p. 435, at p. 436CrossRefGoogle Scholar. Elsewhere he has observed that earlier formulations of Art. 40 (now 43) in the ILC Draft Articles on State Responsibility conflated two categories of states, namely, ‘states whose rights are infringed by the violation of a multilateral obligation and those states with a legal interest in compliance with the obligation.’ He notes that in some cases of multilateral obligations there may be no primary obligee, specifically citing the obligation not to emit excess CFCs into the atmosphere under the Ozone Convention and its Montreal Protocol: Crawford, J., ‘The Standing of States: A Critique of Article 40 of the ILC's Draft Articles on State Responsibility’, in Andenas, M. and Fairgrieve, D., eds., Liber Amicorum in Honour of Lord Slynn of Hadley (The Hague, Kluwer Law International 2000) Ch. 3, at pp. 41–42Google Scholar; see also the discussion in Bederman, , ‘Article 40(2)(E) & (F) of the ILC Draft Articles on State Responsibility: Standing of Injured States Under Customary International Law and Multilateral Treaties’ State Responsibility in a Multifactor World’, 1998 ASIL Proceedings, p. 293Google Scholar. These categories of States are now addressed as separate (but potentially related) categories in the ILC Draft Articles.

21. As is discussed further below, this feature of NCPs is particularly important given the inadequacies both of the traditional rules on state responsibility and of the law of treaties to address breach of multilateral environmental treaty obligations.

22. Some commentators rightly observe that traditional dispute settlement provisions may also serve a preventive function: see further n. 36 below. Monitoring and information collection can also provide helpful information as to the effectiveness of non-compliance procedures once adopted, thus completing the feedback loop within in an ongoing process of monitoring and information exchange and review.

23. Art. 6, 1987 Montreal Protocol to the 1985 Ozone Layer Convention.

24. Art. 9, 1979 Convention on Long-Range Transboundary Air Pollution Treaty (‘LRTAP’).

25. Art. 19, 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.

26. This is particularly relevant in arms control treaties, e.g., 1987 US/USSR Treaty on the Elimination of Intermediate Range and Shorter Range Missiles. This is carried out, inter alia, through compulsory inspections. See generally, Oeter, S., ‘Inspection in International Law: Monitoring Compliance and the Problems of Implementation in International Law’, 28 NYIL (1997) pp. 101–169CrossRefGoogle Scholar. A further example is found in the fisheries context, for example the international observer scheme provided for in Art. 21 of the 1995 Straddling Stocks Agreement. Art. VII of the 1959 Antarctic Treaty and Art. 14 of the 1991 Madrid Protocol provide further examples of compliance linked with inspection. On the latter see further Wolfrum, op. cit. n. 11, at p. 45.

27. Art. 13 FCCC.

28. This appears to be supported by for example Chinkin who includes monitoring and reporting to formalised method for treaty compliance: Chinkin, C., ‘International Environmental Law in Evolution’, in Jewel, T. and Steele, J., eds., Law in Environmental Decision-Making. National, European, and International Perspectives (Oxford, Clarendon Press 1998) at p. 247Google Scholar. See also Szell, who observes that ‘[w]ithout regular, detailed and objective reporting of performance, any meaningful supervision of a state's observance of its commitments [is] impossible’: Szell, op. cit. n. 11, at p. 98; see also Sachariew, K., ‘Promoting Compliance with International Environmental Legal Standards: Reflections on Monitoring and Reporting Mechanisms’, 2 YIEL (1991) p. 333.Google Scholar

29. 24 ILM (1985) p. 484Google Scholar. See further di Primio, J. Carlos, ‘Data Quality and Compliance Control in the European Air Pollution Regime’, in Victor, D.K., Raustiala, K., and Skolnikoff, E.B., eds., The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (Cambridge, MIT Press 1998) pp. 283–303Google Scholar

30. 1984 Protocol on Long-Term Financing of the Cooperative Programme for Monitoring and Evaluation of the Long-Range Transmission of Air Pollutants in Europe (EMEP), 24 ILM (1985) p. 484.Google Scholar

31. Protocol on the Reduction of Sulphur Emissions or their Transboundary Fluxes by at least 30%, 27 ILM (1988)p. 707.Google Scholar

32. See also Art. 3(3) of the 1991 Protocol concerning the Control of Emissions of Volatile Organic Compounds or their Transboundary Fluxes, 31 ILM (1992) p. 568.Google Scholar

33. Non-compliance with reporting requirements is explicitly addressed under the Montreal Protocol, for example, which is discussed further below.

34. In this sense, a continuum may be perceived from communication of information and review thereof through to non-compliance and (possibly) culminating in dispute settlement. This is what Szell refers to as ‘filling the gap’ with an effective mechanism. See Szell, The Development of, loc. cit. n. 11; see also the note on implementation (Art. 13 FCCC) prepared by the interim secretariat, supra n. 15, at para. 18 (continuum from communication of information and review - article 12 - to the multilateral consultative process - article 13 - through to dispute settlement - article 14). However, Szell also points out the risk of an inverse relationship between the stringency of NCP and the stringency of the commitments which parties are willing to undertake (ibid., at p. 107), at point echoed by Victor, loc. cit. n. 11, at p. 139.

35. Even where concrete obligations have been established, compliance with which has been ensured, the effectiveness of the treaty regime is not thereby ensured. Compliance is not synonymous with effectiveness since the latter depends in part upon the strength of the obligations, their clarity, and their relationship with the overall objectives of the treaty in question Low standards, and/or ambiguous ones, reduce effectiveness even where ‘compliance’ has been ensured. On effectiveness, see generally Victor et al., eds., op. cit. n. 29.

36. It is an over-simplification to state that dispute avoidance procedures are preventive in character whereas dispute settlement are only applicable post factum when damage to the environment has been done. Indeed, it has been argued elsewhere that the mere existence of dispute settlement mechanisms has a preventive effect since decision makers generally envisage the possibility that the injured state may have recourse such mechanisms: Hafner, G., ‘Should one fear the proliferation Mechanisms for the Peaceful Settlement of Disputes?’, in Caflish, L., ed., The Settlement of Disputes between States: Universal and European Perspectives (The Hague, Kluwer Law International 1998) pp. 25, 37.Google Scholar

37. Notable exceptions include the Ozone Layer Convention and Montreal Protocol, and the FCCC and Kyoto Protocol. For further general discussion see Brus, M.M.T.A., Third Party Dispute Settlement in an Interdependent World (Dordrecht, Martinus Nijhoff Publishers 1995) p. 37Google Scholar et seq. (‘Dispute Settlement and the Global Environment’).

38. Indeed, none of the major environmental catastrophes of recent years such as the 1978 Amoco Cadiz oil spill or 1985 Chernobyl nuclear incident have lead to international judicial proceedings: see e.g., Birnie, P. and Boyle, A., International Law and the Environment (Oxford, Clarendon Press 1992) p. 137Google Scholar. Only a very few cases brought before the ICJ have involved environmental matters, including: Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), 25 September 1997, ICJ Rep. (1997); Case Concerning Certain Phosphate Lands in Nauru, Preliminary Objections, 26 June 1992, ICJ Rep. (1992) pp. 240Google Scholar et seq; Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area, 12 October 1984, ICJ Rep. (1984) pp 245Google Scholar et seq; Legality of the Use of Nuclear Weapons in Armed Conflict, Advisory Opinion, 8 July 1996, ICJ Rep. (1996) pp. 225Google Scholar et seq.

39. Szell, ‘The Development of, loc. cit. n. 11, at p. 102.

40. The Multilateral Consultative Procedure (MCP) established under Art. 13 FCCC is also expressly stated to be without prejudice to the dispute settlement provisions of Art. 14 FCCC. As with the Montreal Protocol NCP, this begs certain legal questions such as: would invocation of Art. 13 require exhaustion before Art. 14 is pursued? Can a State go directly to Art. 14 before Art. 13 has been invoked? Some States favoured the automatic suspension of Art. 13 when Art. 14 is invoked, but this is not the necessary effect of the terms of reference of the MCP which only stresses that the process is both separate from and without prejudice to the dispute settlement provisions of Art. 14. See further Redgwell, op. cit. n. 18, at pp. 13–26.

41. Brus, op. cit. n. 37, at p. 193.

42. Para. 12 of the Montreal Protocol Non-Compliance Procedure.

43. For recent treatment, see Werksman, op. cit. n. 14. He examines the ‘specialized non-compliance systems’ under Art. 13 UNFCCC (the Multilateral Consultative Process) and Art. 18 of the Kyoto Protocol (NCP), as well as the systems which will evolve in the implementation of the Kyoto flexibility mechanisms embodied in Arts. 4 (joint implementation), 6 (emissions trading), and 12 (clean development mechanism).

44. Koskenniemi, M., ‘Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol’, 3 YIEL (1992) pp. 123–162Google Scholar. The issue of ‘due process’ for the ‘target state' where collective countermeasures are employed is raised in the ILC's Third Report, supra n. 6, para. 116.

45. See the indicative list of measures, infra n. 50.

46. Though it must be emphasised once again that each has a distinctive field of operation: supra n. 6.

47. For recent analysis, see Victor, D.G., ‘The Operation and Effectiveness of the Montreal Protocol's Non-Compliance Procedure’Google Scholar in Victor et al., eds., op. cit. n. 11, Ch. 4; Yoshida, O., ‘Soft Enforcement of Treaties: the Montreal Protocol's Non-Compliance Procedure and the Functions of Internal International Institutions’, 10 Colorado JIEL & Poll (1999) pp. 95–141.Google Scholar

48. As Szell observes, it was the first such agreement to ‘fill the gap’ between reporting and dispute settlement with a ‘meaningful procedure’: Szell, ‘The Development of’, loc. cit. n. 11, at p. 99. Thus the accomplishment of the Protocol NCP is two-fold: an internal, possibly self-contained mechanism to address non-compliance combined with ‘gap-filling’ between monitoring and reporting obligations and dispute settlement procedures. On self-contain regimes, see further below.

49. See Decision III/2(a)(ii), Montreal Protocol MOP3, UNEP/OxL.Pro.3.L.4.

50. UNEP/OxL.Pro4/5/15, 23 November 1992. These are: a. appropriate assistance, including assistance for the collection and reporting of data, technical assistance, technology transfer and financial assistance, information transfer and training; b. issuing cautions; c. suspension, in accordance with the applicable rules of international law concerning suspension of the operation of a treaty, of specific rights and privileges under the Protocol, whether or not subject to time limits, including those concerned with industrial rationalisation, production, consumption, trade, transfer of technology, financial mechanism and institutional arrangements.

51. Report of the Third Meeting of the Parties to the Montreal Protocol, UNEP/OxL.Pro.4/15 (1992).

52. Werksman, loc. cit. n. 14, at p. 72. A similar approach may prevail under the Kyoto NCP. Amongst other things, Werksman discusses the possible suspension of a party's ability to trade allowances and offsets under the Kyoto Protocol as one possible compliance response.

53. At MOP9 an Ad Hoc Working Group of Legal and Technical Experts on Non-Compliance was established to review the operation of the non-compliance procedure, with suggested modifications adopted virtually verbatim at COP 10: see Decision IX/10. For the report of the Working Group, see UNEP/OzL.Pro/WG.5/1/3/ 18 November 1998.

54. See http://www.unep.ch for the text of the reports (Ozone Secretariat web site). Such reports are required to be available to the parties not later than six weeks before a MOP: Para. 9 NCP (1998); on availability and protection of confidential information, see further paras. 15 and 16 NCP.

55. See paras. 1, 3 and 4, NCP Procedure 1998.

56. Art. 7 of the Protocol sets forth detailed data reporting requirements. As Werksman observes, the early work of the Montreal Protocol Implementation Committee focused on concerns raised by the Ozone Secretariat regarding compliance with such requirements: loc. cit. n. 14, at p. 97. One interesting phenomenon has been the Committee's willingness to overlook non-compliance evidenced in data in an effort to ensure participation in and eventual compliance with the Protocol: Kingsbury, loc. cit. n. 10, at p. 366. This emphasis on cooperation over conflict, and a certain flexibility in permitting adherence to treaty obligations over time, suggests a certain progressive character to the obligations.

57. Response by the Secretariat to the Working Group on Non-Compliance, UNEP/OzL.Pro/WG.4/1/1, para. 8.

58. See for example, the reports by Kenya, Uganda and the Maldives on non-compliance with reporting obligations contained in the Secretariat's Second Report on the Reporting of Data.

59. For further information, see the web site for the secretariat of the Fund at http://www.unmfs.org/

60. Para. 8 and 9 NCP (1998), respectively.

61. Koskenniemi, loc. cit. n. 44, at p. 157

62. In particular see cases: South- West Africa, Application of the 1971 Montreal Convention, and Application of the Genocide Convention.

63. Rosenne, S., The Law and Practice of the International Court 1920–1996, Vol. I The Court and the United Nations (The Hague, Martinus Nijhof Publishers 1997) p. 155.Google Scholar

64. See Koskenniemi, loc. cit. n. 44, at p. 146; and Churchill and Ulfstein, loc. cit. n. 5, at p. 646.

65. In the Aegean Sea Continental Shelf case, ICJ Rep. (1978) 3, the Court rejected the apparent suggestion from Turkey that judicial proceedings ought not to proceed in the face of active negotiations relying, inter alia, upon Art. 33 of the UN Charter (which enumerates negotiation and dispute settlement together). It observed that ‘the fact that negotiations are being actively pursued during the present proceedings, is not, legally, any obstacle to the exercise by the Court of its judicial function.’ (idem, p. 12). Indeed, as Merrills observes, negotiation is the principal means of handling international disputes: Merrills, J.G., International Dispute Settlement, 3rd edn. (Cambridge, Cambridge University Press 1998) p. 2Google Scholar. Koskenniemi considers that ongoing conciliation procedures should not be a bar for a dispute; loc. cit. n. 44, at p. 159. On the relationship between DSPs and countermeasures, see below text following n. 85.

66. There is in any event an overlap between the NCP and diplomatic methods: NCP, Para. 3.

67. Birnie and Boyle, op. cit. n. 38, make the point that pressure upon parties in default is a common method of addressing default under international environmental treaties, even where no treaty-based NCP procedure exists. See, for example, the practice of the COP under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 12 ILM (1973) p. 1088Google Scholar, which reviews information from the Secretariat on national reports and may identify cases of non-compliance.

68. Koskenniemi, loc. cit. n. 44, at p. 158.

69. Koskenniemi supports his view on the basis of the statement in the Great Belt case wherein the International Court stated that judicial settlement is an alternative to the direct and friendly settlement of disputes between parties and that any negotiations pending the judicial proceedings with a view of achieving a direct and friendly settlement are to be welcomed: Case Concerning Passage through Great Belt, ICJ Rep. (1991) p. 61Google Scholar para. 35 relying upon the Case of Free Zones of Upper Savoy and District of Gex, (1930) PCIJ, Ser. A. No. 22, 13.Google Scholar

70. Report of the Ad Hoc Working Group of Legal and Technical Experts on Non-Compliance with the Montreal Protocol, UNEP/OzL.Pro/WG.4/1/3/, para. 48.

71. See generally, Werksman, J., ‘Compliance and Transition: Russia's Non- Compliance Tests the Ozone Regime’, 56 ZaöRV (1996) p. 750.Google Scholar

72. This is emphasised in Para. 9 of the NCP, the third sentence of which provides that ‘[a]fter receiving a report by the Committee the Parties may, taking into consideration the circumstances of the matter, decide upon and call for steps to bring about full compliance with the Protocol, including measures to assist the Parties’ compliance with the Protocol, and to further the Protocol's objectives’ [emphasis added].

73. Werksman, loc. cit. n. 14, at p. 71

74. Countermeasures ‘…are the most difficult and controversial aspect of the whole state responsibility’, Fifth Report on State Responsibility by G. Arangio-Ruiz, Special Rapporteur, A/CN.4/453, 12 May 1993, para. 27. Special Rapporteur Crawford suggests that one of the reasons for his predecessor's resignation was the intractability of the issue of countermeasures and multilateral obligations: 1998 Report, para. 324.

75. See the ILC's Report of its Fifty-third session, 23 April-1 June and 2 July-10 August 2001, A/CN.4.L/502/Rev.1. The draft articles have been adopted on second reading (18 August 2001). On the draft articles provisionally adopted on second reading at the ILC's Fifty-second session, see Crawford, J., Bodeau, P. and Peel, J., ‘The ILC's Draft Articles on State Responsibility: Towards Completion of Second Reading’, 94 AJIL (2000) p. 660CrossRefGoogle Scholar. In addition to reproduction on the ILC web site of the three reports to date of the current special rapporteur and of the text of the draft articles adopted on first reading http://www.un.org/law/ilc/index.htm the text of the draft articles with commentary is reprinted in 37 ILM 440 (1998). See also http://www.law.cam.ac.uk/RCIL/ILCSR/Statresp.htm For recent debate on the second reading of the controversial issues before the ILC, including the issue of state responsibility and multilateral obligations, see 10 FJIL (1999) passim.

76. A/CN.4/507/Add.3, p. 2, para. 287.

77. Supra n. 6 at pp. 55–57; see A/CN.4/507/Add.3, p. 2, para. 289. See further Lefeber, R., ‘The Gabcikovo-Nagymaros Project and the Law of State Responsibility’, 11 Leiden JIL (1998) pp. 609–625.CrossRefGoogle Scholar

78. See further Dominice, C., ‘The International Responsibility of States for Breach of Multilateral Obligations’, 10 EJIL (1999) p. 353CrossRefGoogle Scholar and Zemanek, K., ‘New Trends in the Enforcement of erga omnes Obligations’, 4 Max Planck Year Book of United Nations Law (2000) p. 1.Google Scholar

79. Third Report, supra n. 6, at para. 106, pp. 49–50, with table at p. 50 setting out the three categories and the extent of their application. See also Table 2 ‘Extent to which differently affected States may invoke the legal consequences of the responsibility of a State’, ibid., para. 118, p. 56. It should be noted that these categories of obligation are not mutually exclusive.

80. Ibid., at para. 106 (b), p. 49.

81. Ibid.

82. In 1998, in response to criticisms of Art. 19 of the Draft Articles adopted on first reading in 1996, the ILC ‘decided to resolve the issues raised by Article 19 through the concepts of obligations to the international community as a whole, and peremptory norms’: 1998 Report, p. 147, para. 331. These provisions are now located in Draft Articles 42 and 48 which provide as follows:

Article 42 [40] Notice of claim by an injured state.

1. An injured state which invokes the responsibility of another state, shall give notice of its claim to that state.

2. The injured state may specify in particular:

(a) The conduct that the responsible state should take in order to leave the wrongful act, if it is continuing:

(b) What forms reparation should take in accordance with the provisions of Part Two.

Article 49 Invocation of responsibility by States other than the injured State

1. Any state other than an injured state is entitled to invoke the responsibility if another state in accordance with paragraph 2 if:

(a) The obligation breached is owed to a group of states including that state, and is established for the protection of a collective interest of the group; or

(b) The obligation breached is owed to the international community as a whole.

2. Any state entitled to invoke responsibility under paragraph 1 may claim from the responsible state:

(a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and

(b) Performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured state or beneficiaries of the obligations breached.

3. The requirements for the invocation of responsibility by an injured state under Articles 43, 44 and 45 apply to an invocation by a state entitled to do so under paragraph 1.

83. A/CN.4/507/Add.4, p. 8, para. 379; and see draft article 48, ibid.

84. A/CN.4/507, p. 51, para. 109.

85. Art. 54 of the draft articles. As Crawford et al. note, this is a tenable if not a compelling argument: loc. cit. n. 75.

86. Whilst Security Council action, and also the role of the ECJ under Art. 228 EC, clearly fall within this excluded category, less clear is the position of the Montreal Protocol NCP for example. A clear distinction is of course that both the UN and the EC are international organisations possessing international legal personality; the Montreal Protocol MOP, the decision-making body for these purposes, does not. However, to the extent that this provision in the draft articles is intended to exclude e.g., self-contained regimes, this point is returned to below, text following n. 94. On the legal status of ‘autonomous institutional arrangements’ established by multilateral environmental agreements and the application thereto of international institutional law, see Churchill and Ulfstein, loc. cit. n. 5.

87. Art. 58(2) on first reading; for criticism of this linkage, cf., Second Report, A/CN.4/498/Add.4, pp. 13–15, paras. 384–387.

88. The Court has said in relation to the US aborted rescue operation that ‘an operation undertaken in those circumstances from whatever motive, is of a kind calculated to undermine respect for judicial process in international relations…’ Case Concerning United Sates Diplomatic and Consular Staff in Teheran, ICJ Rep.(1980) p. 1, para. 93.Google Scholar

89. On environmental harm generally, see Wetterstein, P., ed., Harm to the Environment: The Right to Compensation and the Assessment of Damages (Oxford, Clarendon Press 1997)Google Scholar and Francioni, F. and Scovazzi, T., eds., International Responsibility for Environmental Harm (London, Graham & Trotman 1991)Google Scholar; see also Peel, J., ‘New State Responsibility Rules and Compliance with Multilateral Environmental Obligations - Some case studies of how the New Rules Might Apply in the International Environmental Context’, 10 RECIEL (2001) pp. 82–98.Google Scholar

90. Case Concerning the Factory at Chorzów (Claim for Indemnity; Merits), PCIJ, Ser. A, No. 17 (1928) p. 47Google Scholar. The relevant passage reads as follows: ‘The essential principle […] is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if the act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear.’

91. Matters are further complicated by the distinction drawn in the ILC's deliberations between state responsibility on the one hand, where breach of a primary obligation gives rise to the secondary obligation to make reparation, and reparation for the injurious consequences of an act not prohibited by international law, where the obligation to make reparation arises from the operation of the primary rule itself. In the latter context, restitutio in integrum is not as rigorously observed: see remarks of Barbarosa, Special Rapporteur on Liability for the Injurious Consequences Arising Out of Acts Not Prohibited by International Law, ‘The ILC and Environmental Damage’, in Wetterstein, ed., op. cit. n. 89, at p. 79.

92. Boyle, A.E., ‘Remedying Harm to International Common Spaces and Resources: Compensation and Other Approaches’Google Scholar, in Wetterstein, ed., op. cit. n. 89, at p. 89.

93. The Climate Change Convention furnishes one such example. Indeed, where the polluter pays principle is most rigorously applied under international environmental treaties, it is with respect to imposing liability on private actors – ship owners or nuclear operators for example – either exclusively or in conjunction with state responsibility. For example of the former, see the 1992 Protocol to the 1969 Convention on Civil Liability for Oil Pollution Damage; and for the latter, the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy and 1963 Brussels Supplementary Convention.

94. As Boyle notes, op. cit. n. 92, the responsibility of Iraq for environmental damage caused during its invasion and occupation of Kuwait, recognised in Security Council Resolution 687, is one of the few examples of exclusively state liability for environmental damage, albeit with claims presented via an international forum, the United Nations Compensation Commission. The Wimbledon case, (1923) PCIJ Ser. A, No. 1 is an interesting example of both bilateral and multilateral remedies being sought in the context of an obligation erga omnes partes: France sought reparation on its own part in respect of losses suffered, whilst the three other States were concerned to establish the principle in dispute, and thereby achieve cessation of the wrongful act. It is cited in the ILC Third Report, para. 114, n. 206, as an example of the question whether other States ‘should be able to seek compensation or take countermeasures on their own account.’

95. For excellent analysis see Simma, B., ‘Self-contained regimes’, 16 NYIL (1985) p. 111CrossRefGoogle Scholar; for application see the numerous case studies in the twenty-fifth anniversary volume of the Yearbook (1994), in particular Fitzmaurice, M.A., ‘International Environmental Law as a Special Field’, pp. 181–226Google Scholar. The contributions by de Witte and by Hancher (EC law), Barnhoorn (diplomatic law) and Vierdag (human rights) revisit the three examples explored by Simma in 1985.

96. As Simma observes in the human rights context, one view is that the non-reciprocal character of human rights treaty obligations renders inapposite countermeasures which are built on the edifice of reciprocity. This view is echoed by Wolfrum, R. in the environmental context in his Hague lectures, ‘Means of Ensuring Compliance With and Enforcement of International Environmental Law’, 272 RdC (1998) pp. 9–154.Google Scholar

97. See further Simma's conclusion, point (f), loc. cit. n. 95, at p. 136.

98. Ibid., at p. 117.

99. The possibility of viewing the Montreal Protocol as a fully self-contained regime was also considered by Koskenniemi, who observed that: ‘this would allow parties its flexible application, but only at the cost of its binding force under general international law. Whether this cost seems worth paying depends on what value one puts on the formalism and the procedural safeguards for sovereignty that form the nucleus of the general law.’ loc. cit. n. 44, p. 162.

100. The suggestion was made that then Art. 37 of Part II (which addresses lex specialis) be made into a general principle of application to the whole of Part I of the Draft Articles: 1998 ILC Rep., A/53/10. At present Art. 55.

101. Ibid., para. 420, p. 27.

102. In general on material breach see: Rosenne, S., Breach of a Treaty (Cambridge, Grotius Publications Limited 1985)Google Scholar; Gomma, M.M., Suspension or Termination of Treaties on Grounds of Breach (The Hague, Martinus Nijhoff Publishers 1996)Google Scholar; Simma, B., ‘Reflections on Article 60 of the Vienna Convention on the Law of Treaties and its Background in General International Law’, 20 ZaöRV (1970) pp. 5–83Google Scholar; Hutchinson, D., ‘Solidarity and breaches of Multilateral Treaties’, 59 BYIL (1989) pp. 151–213Google Scholar; Sicilianos, L.-A., ‘The Relationship Between Reprisals and Denunciation or a Suspension of a Treaty’, 4 EJIL (1993) pp. 341–359.CrossRefGoogle Scholar

103. Commentary of the ILC see II YbILC (1966) p. 255, para. 8Google Scholar. The Tacna-Arica Arbitration (Chile v Peru) 2 RIAA (1925) p. 921Google Scholar established that it is only material breach which justifies termination or suspension, not any breach.

104. An interesting further question is whether this provision incorporates by reference the relevant provisions of the VCLT even for non-parties; however, there is evidence that the Art. 60 regime reflects customary international law (e.g., South West Africa Advisory Opinion 1971, para. 91), in which case the only potential residual category of non-applicability is a party to the Montreal Protocol not a party to the VCLT and a persistent objector to any rules of customary international law reflective of Art. 60 VCLT.

105. This is not to suggest that there is an inconsistency between general international law and the provisions of Art. 60 addressing responses to material breach, since the requirement of proportionality would in any event indicate the inappropriateness of termination or suspension in response to a minor breach.

106. See further supra n. 6. This also applies to the definition of the injured State in Art. 43(b)(ii) to include State(s) where the breach of the obligation ‘is of such a character as to affect the enjoyment of the rights or the performance of the obligations of all the States concerned’ and Art. 60(2)(c) VCLT which defines material breach of a treaty ‘of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations’. As the Third Report observes, the VCLT formulation is narrower and, ‘[w]hile applying an a priori test of effect upon other States, it applies to the treaty as a whole and not to the particular obligation breached’ (the latter being the approach of the Draft Articles). See A/CN.4/507, p. 42, para. 91.

107. The ILC Commentary to what was to become Art. 60(2)(c) VCLT makes it clear that this response is addressed to treaties ‘of a special type’ (disarmament treaties are specifically mentioned, for example), ‘where a breach by one party tends to undermine the whole regime of the treaty as between all the parties’.

108. See also, Koskenniemi, loc. cit. n. 44, at p. 138.

109. Simma, loc. cit. n. 102, at p. 82.

110. Ibid., at p. 82.

111. Wolfrum, loc. cit. n. 96.

112. Riphagen, W., ‘Sixth Report on State Responsibility’, II YbILC (1985) p. 12Google Scholar; for similar views see also, Aranguio-Ruiz, G., ‘Third Report on State Responsibility’Google Scholar, A/CN.440,45–46, paras. 84–85.

113. See for example, Bell, S. and McGillvray, D., Ball & Bell on Environmental Law, 5th edn., (London, Blackstone Press 2000)Google Scholar Ch. 9 ‘The enforcement of environment law’, whom observe that regulatory enforcement is concerned not only with punishment but also with bringing about compliance (at p. 240). Prevention of harm and the maintenance of a continuing relationship between enforcer and polluter are amongst the reasons cited for the adoption of a cooperative, rather than a confrontational, approach to enforcement (at p. 241).

114. For further discussion of compliance approaches, see infra n. 14.

115. On the NCP under the Climate Change see in particular: Redgwell, loc. cit. n. 18; Butler, J.E., ‘The Establishment of A Dispute Resolution/Noncompliance Mechanism’, ASIL Proceedings (1997) pp. 250–256Google Scholar; Bodansky, D., ‘The United Nations Framework Convention on Climate Change: A Commentary’, 18 Yale JIL (1993) pp. 451–558Google Scholar; Rowlands, I., The Policies Global Atmosphere Change (Manchester, Manchester University Press 1995)Google Scholar; Zaelke, D. and Cameron, J., ‘Global Warming and Climate Change-An Overview of an International Legal Process’, 5 Am.Univ.JIL & Pol. (1990) pp. 249–289Google Scholar; Werksman, J., ‘Designing a Compliance System for the UN Framework Convention on Climate Change’Google Scholar, op. cit. n. 11; and Cameron et. al., op. cit. n. 11, Chapter 4.

116. For recent analysis, see Werksman, loc. cit. n. 14.

117. FCCC/CP/1998/16/Add. 1, Decision 8/CP.4.

118. That is, joint implementation between Annex I parties, the clean development mechanism (Annex I and non-Annex I parties) and emissions trading.

119. For excellent recent analysis of COP-6, see Rajamani, L., ‘Re-Negotiating Kyoto: A Review of the Sixth Conference of the Parties to the Framework Convention on Climate Change’, RECIEL (2001) (forthcoming)Google Scholar; see also the ‘Summary of the Sixth Conference of the Parties to the Framework Convention on Climate Change: 13–25 November 2000’, 12 No. 163 Earth Negotiations Bulletin (2000) pp. 1–19Google Scholar. An informal note by President Pronk formed the basis for last-ditch efforts at achieving consensus in the last two days of COP-6, without success: see Note by the President of COP-6, 23 November 2000, annexed to Decision 1/CP.6.

120. COP-6 saw consensus emerging regarding the need for legally binding consequences for noncompliance (which, as indicated above, would require amendment of the Protocol - Art. 18) with Art. 3(1) but controversy remains regarding the types of measures which may be taken in response to a finding of non-compliance. In particular whether vireing between commitment periods would be permitted, and the submission of a ‘compliance action plan’ to the enforcement branch of the Compliance Committee, proved insurmountably contentious. On the first point, the issue is what ‘penalty’ rate should apply in subtracting excess emissions from one commitment period from the permitted emissions amount for the subsequent commitment period. A compromise figure of 1.5, rising in increments of 0.25 in each subsequent period of non-compliance, was suggested in the President's Note but did not achieve widespread support. Whether approval of the compliance action plan by the enforcement branch of the Compliance Committee would be required was also left unresolved. COP-6 bis adopted a political agreement on the outstanding issues including compliance that needs to be incorporated into the legal document. (Conference of the Parties, sixth session, part two, Bonn 16–27 July 2001, FCC/CP/2001/L.7).

121. The composition of the Compliance Committee, namely, its enforcement and facilitative branches, has defied consensus. The two opposing views are equitable geographic representation versus Annex I/non-Annex I with the former enjoying a numerical majority. Indeed, as regards the enforcement branch the Umbrella Group (a fluid grouping of Annex I countries including Australia, Canada, Japan, New Zealand, Norway and the US) has supported exclusive Annex I membership on the basis that enforcement issues will only arise for such parties. The opposing argument is that non-compliance with commitments affects all countries. President Pronk proposed a compromise formula of representation by the five regional groups but with a 3/4 majority voting rule in combination with a double majority (for Annex I and non-Annex I countries) voting rule for the enforcement branch, with equitable geographic representation on the facilitative branch. See Note, supra, n. 119. No consensus emerged on this compromise formula: see further Rajamani, loc. cit. n. 119, at p. 14.

122. Churchill and Ulfstein criticise the indicative measures under the Montreal Protocol as unnecessarily restrictive in requiring suspension of rights and privileges thereunder to be in accordance with the applicable treaty law rules, rather than with the (presumably wider) ‘appropriate law of international institutions’: loc. cit., n. 5, at p. 645. At pp. 643–647 they consider briefly the application of international institutional law to breaches of substantive obligations under multilateral environmental agreements and to the interpretation and application of NCPs (an issue beyond the scope of this article), though conclude that the issue remains rather theoretical in the absence of practice beyond the Montreal Protocol NCP.

123. Part 3 infra. Note also the potential for estoppel to operate where DSP is invoked subsequent to the conclusion of the NCP.