The compliance mechanism Outcomes and stocktaking

Environmental Policy and Law

Volumn 41, Issue 4-5, 2011, Pages 196-205

  Koester, Veit ^a,b  

^a ROSKILDE UNIVERSITY   (Denmark)

^b UNITED NATIONS UNIVERSITY   (Japan)

Author keywords

[No Author keywords available]

Indexed keywords

COMPLIANCE; ENVIRONMENTAL POLICY;

EID: 80155210193     PISSN: 0378777X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (36)

1. MOP4 was also preceded by the 33rd meeting of the Compliance Committee convened from 27 to 28 June 2011.
2. Decision I/7, doc. ECE/MP.PP/2002/2 (Add.8), consisting of a decision with a few operative provisions while the annex to the decision contains the main body of provisions relating to the compliance mechanism (hereinafter Decision I/7)
3. References in the paper to Decision I/7 are references to provisions of the annex. Specific references to relevant provisions of the annex are provided in the footnotes. The decision as a whole is referred to below as the Compliance Mechanism (CM), while the Compliance Committee is referred to as CC.
4. Academia has paid a lot of attention to the Aarhus Convention and its CM in particular. A number of articles have been published in periodicals on international environmental law as well as in books dealing with compliance-related issues, the most recent one being Pallemaerts, M. (Ed.) (2011) The Aarhus Convention at Ten: Interactions and Tensions between Conventional International Law and EU Environmental Law. Groningen: Europa Law Publishing.
5. The fact that most references in the present article are to articles by the author does not indicate that articles and contributions by other authors are ignored, but only that the purpose of the present paper is not to present a full account of the fi ndings or discussions by academia.
6. Furthermore, references to a number of articles by those authors are included in the articles of the present author referred to below. On the negotiation history of Decision I/7, see Koester, V. (2005) "Review of Compliance under the Aarhus Convention: A Rather Unique Compliance Mechanism". Journal for European Environmental and Planning Law (JEEPL) 2(1): 31-45, at 33
7. Koester, V. (2009) "The Compliance Mechanisms of the Aarhus Convention and the Cartagena Protocol on Biosafety: A Comparative Analysis of the Negotiation Histories and their Outcomes". In: Treves, T. et al. (Eds) Non-Compliance Procedures and the Effectiveness of International Agreements. The Hague: Asser Press.
8. Outlined in the Report of the Compliance Committee to MOP4 (CC Report), doc. ECE/MP.PP/2011/11, para. 5.
9. The CM may also be triggered by Party-to-Party submissions and self-submission as well as by referrals by the Secretariat, re. Decision I/7, paras 15-17. So far, the CM has in these respects been triggered by only one Party-to-Party submission (Romania v. Ukraine, re. Koester, V. (2007b) "The Compliance Committee of the Aarhus Convention - An Overview of Procedures and Jurisprudence". Environmental Policy and Law 37(2-3): 83-96, note 48 at 94
10. Findings and possible recommendations in that respect are also submitted to the MOP for consideration and decision on appropriate measures.
11. Report of the Fourth Meeting of the Parties (MOP4 Report). At the time of writing the present article the report was not yet published. The main decisions of MOP4, however, are published as a "List of Decisions and Major Outcomes", available at: http://live.unece.org/env/pp/mop4/mop4.doc.html.
12. A Summary of MOP4 by IISD Reporting Services is available at: http://www.IISD.ca/YMB/Aarhus/MOP4
13. seen from an NGO perspective - as a special edition (July 5, 2011) of Environmental Policy and Law Weekly, accessible at: http://www. facebook.com/topic.php?uid=117390881635397&topic=321.
14. Doc. ECE/MP.PP/C.1/2011/2/Add.10.
15. Bétaille, J. (2010) "Le droit francais de la participation du public face à la convention d'Aarhus". Actualité juridique, droit administratif 66(37): 2083-2088, referring to doc. ECE/MP.PP/C.1/2009/4/ Add.1.
16. Juste Ruiz, J. and Salazar Ortuño, E. (2011) "Non-respect par l'Espagne des obligations de la convention d'Aarhus: communication ACCC/C/2008/24, dans le cas 'senda de Granada' a Murcia". Revue Juridique de l'Environnement 1: 5777. The authors mention (at p. 74), but do not question the statement of the CC.
17. Decision IV/9f, para. 1(c).
18. Decision IV/9a (Armenia), Decision IV/9b (Belarus) and Decision IV/9e (Slovakia). In these cases, the CC preferred for various reasons to make recommendations directly to the MOP instead of seeking the agreement of the Parties concerned to make recommendations to these Parties.
19. Decision IV/9d (Moldova), Decision IV/9f (Spain) and Decision IV/9i (UK) and the accompanying reports, respectively doc. MP.PP/C.1/2 Add. 6 (Moldova), Add. 7 (Spain) and Add. 9 (UK). The fact that none of the reports suggested any change of the original recommendations demonstrates that none of the Parties concerned succeeded to implement fully the intersessional recommendations.
20. See, e.g., the report concerning Spain, doc. ECE/MP.PP/C.1/2011/2/Add.7, para. 30, in comparison with Decision IV/9f, paras 3-10.
21. Docs ECE/MP.PP/C.1/2011/Add.1 and ECE/MP.PP/C.1/2011/2/Add.5 respectively.
22. Doc. ECE/MP.PP/2011/2/Add.4, para. 15.
23. Decision IV/9g, para. 3, and Decision IV/9, para. 13.
24. Decision IV/9h, paras 7, 8 and 9.
25. Report of the CC on its 32nd meeting, doc. ECE/MP.PP/C.1/2011/4, paras 33 and 34. The interpretation of the CC corresponds to the interpretation in Koester, V. (2007a) "The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention)". In: Ulfstein, G., Marauhn, T. and Zimmermann, A. (Eds) Making Treaties Work, Human Rights, Environment and Arms Control, at 211-212. Cambridge: Cambridge University Press.
26. Pitea, C. (2007) "The Non- Compliance Procedure of the Aarhus Convention: Between Environmental and Human Rights Control Mechanisms". The Italian Yearbook of International Law XVI 2006: 85-116, at 109-111.
27. The observation in note 129, at 109, that the wording of para. 37(g) of Decision I/7 according to Koester (2007a) is taken from the analogue measure listed in the indicative list of the Montreal Protocol CM is wrong, since it is stated here, at 211, only that the wording of the above provision has some similarities with the analogue measure of the Montreal Protocol, but actually, what matters are the differences.
28. The 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context has, however, recently received some Party-to-Party submissions, which may be found at http://live.unece.org/env/eia/implementation/ implementation-committee.html.
29. Koyano, M. (2009) "Effective Implementation of International Environmental Agreements: Learning Lessons from the Danube Delta Conflict" In: Komore, T. and Willins, K. (Eds) Public Interest Rules of International Law - Towards Effective Implementation. Farnham: Ashgate. On the CM of the Espoo Convention.
30. Report of the CC to MOP2 (doc. ECE/MP.PP/2005/13), paras 38-43 (e.g., a recommendation to MOP2, inspired by the Party-to-Party submission (Romania v. Ukraine), on the need for guidelines on the implementation in a transboundary context of Article 6 of the Convention on public participation in decision-making (and ECE/MP.PP/2005/13/Add.2), and doc. ECE/MP.PP/2008/5, paras 61 and 67).
31. Andrusevych, A., Alge, T. and Konrad, C. (Eds) (2011) (Case Law of the Aarhus Convention Compliance Committee (2004-2011), Second Edition. Lviv: RACSE, at 100) contains a useful review of CC decisions related to Decision I/7.
32. E.g., Decision IV/9 on General Issues of Compliance, paras 1 and 2.
33. The number of provisions includes Articles 3-9 with paras (e.g., Article 3, paragraph 1) and subparas (e.g., Article 6, para. 1(a)), but not subparas to subparas (e.g., Article 6, para. 2(d)(i)).
34. Relating to Austria, Bulgaria, the Czech Republic, Denmark (two), Germany, Kazakhstan, Romania, UK (four) and EU (two).
35. ACCC/C/2008/32 and ECE/MP.PP/C.1/2011/4/Add.1 (EU-Part I).
36. Hence, the denouncement of the CM by the US when it was adopted at MOP1 in 2002 ("US Statement on the Establishment of a Compliance Mechanism". Environmental Policy and Law 33(3-4): 178-179) has proven to be completely ill-founded.