UNEP/CBD/BS/COP-MOP/4/2/Add.1

Page 1

/ / CBD
/ Distr.
GENERAL
UNEP/CBD/BS/COP-MOP/4/2/Add.1
6 December 2007
ORIGINAL: ENGLISH

CONFERENCE OF THE PARTIES TO THE CONVENTION ON BIOLOGICAL DIVERSITY SERVING AS THE MEETING OF THE PARTIES TO THE CARTAGENA PROTOCOL ON BIOSAFETY

Fourth meeting

Bonn, 12-16 May 2008

Item 4 of the provisional agenda

/…

UNEP/CBD/BS/COP-MOP/4/2/Add.1

Page 1

further information and experience regarding cases of repeated nonCompliance under the compliance mechanisms of other multilateral environmental agreements

Compilation by the Compliance Committee

I. INTRODUCTION

1.In accordance with Article 34 of the Biosafety Protocol, the Conference of the Parties serving as the meeting of the Parties to the Cartagena Protocol on Biosafety adopted, at its first meeting, procedures and mechanisms on compliance as contained in the annex to decision BS-I/7.

2.Section VI of the procedures and mechanisms on compliance provide for measures to promote compliance and address cases of non-compliance. The Conference of the Parties serving as the meeting of the Parties to the Protocol identified and adopted various measures that the Compliance Committee, which was established by the same decision, may take with a view to promoting compliance and in response to cases of non-compliance. In taking such measures the Committee is required to take into account the capacity of the Party concerned and such other factors as the cause, type, degree and frequency of non-compliance (section VI, paragraph 1).

3.The Conference of the Parties serving as the meeting of the Parties to the Protocol may also decide, upon the recommendation of the Compliance Committee, on one or more of the measures specified in paragraph 2 of section VI, taking into account, once again, the capacity of the Party concerned to comply, and such factors as the cause, type, degree and frequency of non-compliance. In relation to the frequency of non-compliance, paragraph 2(d) of section VI of the procedures and mechanisms on compliance stipulates that in cases of repeated non-compliance, measures could be taken as may be decided by the Conference of the Parties serving as the meeting of the Parties to the Protocol at its third meeting, and thereafter within the review process in accordance with Article 35 of the Protocol.

4.To this end, the Compliance Committee considered further information on experience regarding cases of repeated non-compliance under the compliance mechanisms of other multilateral environmental agreements at its third and fourth meetings and prepared the present compilation.

5.From the experiences reviewed in the following section, these observations may be derived:

(a)The existing compliance procedures and mechanisms almost invariably require the relevant body to take into account factors such as cause, type, degree and frequency of the alleged case of non-compliance in recommending or determining measures;

(b)When setting out measures that may be taken in respect of a Party’s non-compliance with the requirements of the instrument in question, not only is it frequently required to take into account certain factors as mentioned above, but the measures are also frequently listed in an order of increasing severity, implying that repeated non-compliance will result in the application of more severe measures. In this regard, the Committee observes that it may not be advisable to expect the Committee or the Conference of the Parties serving as the meeting of the Parties to the Protocol be obliged to apply measures in the order in which they appear in the compliance procedures;

(c)A number of compliance mechanisms adopt facilitation measures as the first response to situations of non-compliance;

(d)It appears that the availability of stringent measures with economic or trade consequences and the application of such measures to practical cases of non-compliance are situations mostly limited to multilateral environmental agreements such as CITES and the Montreal Protocol where direct trade measures, in the form of the prohibition or restriction of international trade in listed substances or materials, are central to the purpose of the instrument. Stringent measures are also, however, part of compliance mechanisms in some multilateral environmental agreements which do not directly regulate trade in certain goods or substances;

(e)The stringent measures that exist in most of the compliance systems reviewed have rarely been invoked or applied. This could be due to the mere existence of such measures resulting in the prevention of cases of non-compliance. Based upon its discussion at its third meeting, the Compliance Committee tends to believe that the inclusion of stringent measures in compliance mechanisms may provide a strong incentive for Parties to comply;

(f)Terminologies such as, “persistent non-compliance”, “recurrent inability to return to compliance” used by some multilateral environmental agreements may be equivalent to “repeated cases of non-compliance”, the term used in the context of the Biosafety Protocol; and

(g)In certain instances, consideration has been given to replacing the identification of specific measures that may be applied in response to repeated cases of non-compliance with mandating the governing body, upon recommendation from the compliance mechanism, to apply more stringent measures provided they are consistent with applicable international law including Article 60 of the Vienna Convention on the Law of Treaties.

6.The review of compliance mechanisms under different multilateral environmental agreements in the following section is only illustrative and is not exhaustive of all such mechanisms. It should be noted that each of the regimes was negotiated and adopted under specific circumstances which may justify the existence or use of different response measures for similar situations such as measures prescribed in cases of repeated non-compliance.

7.The consideration of the capacity of the Party concerned and such factors as the cause, type, degree and frequency of non-compliance when deciding upon one or more measures in a case of repeated non-compliance by the Conference of the Parties serving as the meeting of the Parties to the Cartagena Protocol on Biosafety may be understood to include (i) the appropriateness of the measure(s) to ensure they are commensurate with the gravity of the compliance matter; (ii) the possible impact of measure(s) on the conservation and sustainable use of biological diversity with a view to avoiding negative results and encouraging positive outcomes. Such understanding may be supplemented by questions such as whether: (i) the non-compliance has been wilful; and (ii) whether the Party concerned has not demonstrated any efforts to comply. The Committee is of the view that measures intended to address cases of repeated non-compliance should not usually be pursued in the event the Party concerned has been working and continues to work towards compliance.

8.Section II of this document contains a compilation of further information on experiences from other multilateral environmental agreements regarding repeated cases of non-compliance. Section III contains an indicative list of measures that may be taken in cases of repeated non-compliance as derived from the experiences reviewed in section II. The indicative list of measures should not necessarily be considered as proposals on measures that may be adopted pursuant to paragraph 2 (d) of section VI to the annex of decision BS-I/7.

9.Finally, it is noted that the purpose of the above observations as well as the indicative list in section III is intended to further facilitate consideration of the issue of repeated cases of non-compliance by the Conference of the Parties serving as the meeting of the Parties to the Protocol.

II. Experiences from other multilateral environmental agreements regarding repeated cases of non-compliance

10.The information on experiences from other multilateral environmental agreements regarding repeated cases of non-compliance, as presented below, is drawn from these agreements’ provisions on compliance, their compliance mechanisms and experiences therewith as well as some draft compliance mechanisms that are under development. The text focuses in particular on the aspects of the agreements, mechanisms and experiences that concern repeated cases of non-compliance. All the compliance mechanisms reviewed below are presented in chronological order of the date of adoption of the instrument under which they have been created or are being considered.

  1. The 1946 International Convention for the Regulation of Whaling (IWC)

11.The 1946 International Convention for the Regulation of Whaling does not include provisions that speak specifically to compliance or repeated cases of non-compliance. Article IX requires each Contracting Government to “take appropriate measures to ensure the application of the provisions of this Convention and the punishment of infractions against the said provisions in operations carried out by persons or by vessels under its jurisdiction.” In general, responsibility for ensuring compliance is left to States although each Contracting Government is also required to transmit to the International Whaling Commission information on each infraction of the provisions of the Convention by persons or vessels under its jurisdiction (Article IX(4)).

12.The International Whaling Commission, which administers the treaty, established an Infractions Sub-committee which “considers matters and documents relating to the International Observer Scheme and Infractions insofar as they involve monitoring of compliance with the Schedule and penalties for infractions thereof”. [1]/ The International Observer Scheme involved the nomination of observers by Governments to monitor infractions of the IWC and its Schedule. Once nominated, observers were appointed by the Commission to every whaling expedition. The International Observer Scheme lapsed when the Commission adopted the moratorium on commercial whaling in 1986. The Infractions Sub-committee also reviews the infraction reports submitted in accordance with Article IX(4), described above.

13.In 1995, the Parties to the Convention initiated the negotiation of a Revised Management Scheme (RMS). It has not yet been agreed what the content of the RMS will be but one possible element is compliance. An RMS Small Drafting Group met in December 2004 and April 2005 and developed draft text on compliance. The result was a paragraph with the title “Oversight”. The paragraph would see the establishment of a Compliance Review Committee “to review and report on the compliance of all whaling operations with the provisions of the Schedule and penalties for infractions thereof.”[2]/ The text includes a list of activities to be undertaken by the Compliance Review Committee, including reviewing infraction reports and other reports; reviewing actions taken by a Contracting Government in response to violations and reviewing actions taken, including progress made, by Contracting Governments in response to previous violations considered by the Commission; and making recommendations to the Commission on actions to be taken to improve compliance. [3]/ The paragraph also includes text in square brackets that would require the Compliance Review Committee to develop and maintain a list of matters that would constitute serious infractions. [4]/ A final provision in the paragraph requires the Committee to report on infringements and their seriousness to the Commission and advise the Commission on what actions, if any, should be taken. [5]/ A note accompanying this provision states that the United Kingdom “would enter a reservation to the effect that any RMS text not providing for the automatic operation of penalties fails to meet the objectives set by [the Commission], i.e. that the rules are obeyed and seen to be obeyed.”[6]/

14.A Compliance Working Group was established at the 57th meeting of the Commission in 2005 with the mandate to “(1) explore ways to strengthen compliance by analysing the range of possible legal, technical, and administrative measures available to the Commission which are consistent within the IWC; and (2) to explore possible mechanisms to monitor and possibly address non-compliance of Contracting Governments consistent with the IWC and international law.” [7]/ The Group was not active between the 57th and 58th meetings of the Commission although the United Kingdom prepared a paper that identifies, amongst other things, specific proposals for the coordination of national/international measures to secure compliance. [8]/ These include: withdrawal of Parties’ right to vote where a Party fails to act to regularise an established violation of the Convention; withdrawal of a Party’s right to participate in the work of Committees and sub-Committees; blacklisting illegal, unreported and unregulated vessels; withdrawal of fishing licenses or registrations; trade restrictions; reduction or cessation of catch quota; publication of parties in a non-compliance list and public notification of non-compliance; organization of missions to assess compliance; and financial penalties.

15.More broadly, in his Report of the Revised Management Scheme Working Group to the 58th meeting of the Commission, the Chair of the Working Group noted that in the two previous meetings of the Working Group, while there was agreement to further work in relation to compliance and the code of conduct for whaling under special permit, the Working Group had agreed that it had reached an impasse and further collective work should be postponed. [9]/ The United Kingdom, in reporting on its work on compliance including the aforementioned paper, stated that it believed non-compliance to be an integral component of any RMS package and so work on compliance could not really progress without better knowledge of the structure of any such future RMS. [10]/ Given the impasse, the Working Group agreed not to spend further time discussing the United Kingdom’s document and overall, the Working Group agreed that no future work on the RMS could be recommended to the Commission. [11]/

B. The 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

16.While the word ‘compliance’ does not appear in the text of CITES itself, measures to achieve compliance have been developed by the Parties over a number of years and continue to evolve. The compliance system includes treaty text, resolutions and decisions of the Conference of the Parties, decisions and recommendations of CITES subsidiary bodies and historical practice.[12]/

17.Relevant treaty provisions include articles VIII, IX, XI, XII, XIII and XIV. In particular, Article XIII on ‘International measures’ contains cooperative procedures and institutional mechanisms for dealing with possible non-compliance. The Article “provides the Conference of the Parties with authority to make “whatever recommendations it deems appropriate” in relation to allegations of unsustainable trade or ineffective implementation.”[13]/ This text is further elaborated by resolutions and decisions of the Conference of the Parties and specific cases of application. ArticleXIV on the “Effect on domestic legislation and international conventions” recognizes the right of Parties to adopt stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in AppendicesI, II and III, or the complete prohibition thereof. This provision has been used on occasion to support Parties’ implementation of a recommendation to suspend trade.[14]/

18.A range of sequential and graduated responses to non-compliance are available to CITES Parties as identified in the document on “Possible Measures for Non-Compliance” prepared for the forty-sixth meeting of the Standing Committee.[15]/ The most serious of these include the suspension of rights and privileges including “recommended suspension of trade in specimens of one or more CITES species or for all CITES species, restriction of the right to vote at one or more meetings of the Conference of the Parties, ineligibility of a Party to be a member of the Standing Committee, loss of the right of a Party and its experts to receive documents for meetings”,[16]/ and financial penalties, i.e., “ineligibility of a Party to have its participation in a meeting of the Conference of the Parties funded by the Convention, ineligibility of a Party to receive other financial assistance from the Convention”.[17]/ While perhaps not explicitly stated in this document, these more serious responses are only put into effect when other efforts (such as advice, assistance, informal warnings, public notification of non-compliance and a compliance action plan) to bring a Party into compliance have failed. These measures can thus be understood as responses to repeated cases of non-compliance. In addition, it was indicated that “Parties often consider the cause, nature, degree and frequency of non-performance before making a formal determination of non-compliance” and that the more serious measures, such as the suspension of rights and privileges and the suspension of trade, are warranted where a Party’s non-compliance is wilful and persistent.[18]/

19.What constitutes non-compliance with CITES has not necessarily changed per se over the years but the Parties have, since 1985, expanded the set of incidents that can trigger the imposition of trade sanctions:

“While initially justified case-by-case in terms of non-compliance with specific substantive requirements of the Convention, inadequate domestic implementing legislation has since 1999 become the most frequently cited cause (on the basis of systematic country-by-country reviews of national law and administration), followed since 2002 by cases of persistent non-compliance with reporting requirements.”[19]/

20. More specifically, Sand lists four categories of non-compliance in which the suspension of trade has been recommended: for Parties with major implementation problems, blacklisted Non-Parties (or ‘Non-Parties with which Parties have been recommended not to trade’), Parties with inadequate national legislation, and Parties with inadequate reporting.[20]/ Between 1985 and 2004, trade suspensions under these four categories were recommended against 37 countries. Each meeting of the Standing Committee generally reviews existing recommendations to suspend trade and such a recommendation is withdrawn as soon as the compliance matter has been resolved or sufficient progress has been made.

21.A Working Group on Compliance was established at the fiftieth meeting of the Standing Committee, held in March 2004.[21]/ The Working Group prepared a “Guide to CITES compliance procedures” which was noted by the Conference of the Parties at its fourteenth meeting held in June 2007 and annexed to decision Conf. 14.3. The Guide is intended to be descriptive of current procedures and not prescriptive (i.e., it is not intended to establish a new compliance system) and it is not legally-binding. The provisions in the Guidelines include an objective and scope, general principles, a description of various CITES bodies and their compliance-related tasks, a description of the handling of specific compliance matters and a section on reporting and reviews.