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New Zealand Journal of Environmental Law |
Last Updated: 16 February 2023
163
Non-Compliance Procedures Under the Cartagena Protocol:
a wise Decision for a “soft” approach?
Imke Sagemueller*
This article examines the non-compliance procedure established under the Cartagena Protocol on Biosafety to the Convention on Biological Diversity. The article questions whether non-compliance procedures in general and the non-compliance procedure established under the Protocol in particular are reasonable methods of ensuring compliance. The author argues on a number of different levels. Commencing with a definition of non-compliance procedures, the article goes on to consider the possible responses to non-compliance. Compliance theory generally distinguishes between two theoretical approaches in responding to non-compliance: the “soft” managerial approach and the “hard” enforcement approach. Both approaches are thoroughly examined before the question is considered as to whether soft or hard responses to non-compliance should be applied in general. Subsequently, the analysis focuses on the Cartagena Protocol specifically. Was it reasonable to develop a non-compliance procedure under the Protocol? The article determines whether the Cartagena Protocol applies the managerial or the enforcement approach before a conclusion is reached as to whether, in this regard, a wise decision was made.
1. INTRODUCTION
Against the background of a highly emotional scientific, social, and political debate about the pros and cons of modern biotechnology, the Cartagena Protocol
*LLM (Environmental Law) (Auckland), First Legal State Examination (Albert-Ludwigs University of Freiburg, Germany). The author is grateful to Professor Catherine Redgwell for her helpful comments on the outline of this paper and to the German Academic Exchange Service (DAAD) for providing generous financial support that made this research possible.
on Biosafety to the Convention on Biological Diversity1 was adopted in January 2000 after nearly five years of intense negotiations.2 The Protocol entered into force in September 2003 and has currently been ratified by 119 states.3 The Protocol’s binding rules aim to protect biodiversity and human health from the potential risks of living modified organisms (LMOs),4 with a specific focus on regulating their transboundary movements. To ensure compliance with these rules, Article 34 of the Protocol requires the first meeting of the Conference of the Parties serving as the meeting of the Parties to the Protocol (COP/MOP-
It is the objective of this article to examine closely the NCP developed under the Cartagena Protocol. Whereas a lot has been published on the substantive provisions of the Protocol, research on its compliance procedures has not yet been undertaken in such detail. However, substantive rules of international law concerning the protection of the environment are of little significance unless compliance with the provisions is effectively safeguarded. Whether NCPs in general, and the NCP under the Protocol specifically, are reasonable methods of ensuring compliance shall be examined in this article. As the subtitle indicates, the question as to whether the establishment of a NCP under the Protocol was a wise decision for a soft approach shall be answered.In order to effectively address this ambiguous question, this article will argue on a number of different levels. Commencing with a definition of NCPs, it will then examine whether the “soft” approach of NCPs in contrast to traditional “hard” means of enforcement is reasonable in general. The second level of argument will consider the possible responses to non-compliance. In this respect, compliance theory generally distinguishes two theoretical approaches: the “soft” managerial approach and the “hard” enforcement approach. Both theories will be closely examined before the question as to whether soft or hard responses to non-compliance should be applied in general is answered.
The argument will next focus on the Cartagena Protocol specifically. Was it reasonable to develop a NCP under the Protocol? It will be considered whether the Protocol applies the managerial or the enforcement approach before the question will finally be answered as to whether in this respect a wise decision was made.
2. NON-COmPLIaNCe PROCeDURes UNDeR mULTI- LaTeRaL eNVIRONmeNTaL agReemeNTs (meas)
2.1 Definition and Objectives of Non-Compliance Procedures
Defining the concept of NCPs firstly necessitates a definition of the underpin- ning term “compliance”. Subsequently, possible reasons for non-compliance will be examined, before NCPs will be defined and integrated in the theory of treaty compliance systems. Finally, the general objectives of NCPs will be illustrated.
Compliance is generally defined as the conformity of an actor’s behaviour with explicit treaty rules.5 Compliance should be kept distinct from the related term “implementation”. In contrast to compliance, implementation refers more broadly to the question of whether the actions undertaken by the parties to a treaty in fulfilling their commitments effectively meet the objectives of the treaty.6 Even in cases where the parties are in full compliance with the treaty provisions, the treaty may not be implemented, because the actions do not achieve the aims of the treaty.7 Compliance is thus on the one hand a narrower concept than implementation, focusing only on the fulfilment of commitments, rather than on whether the conducted actions fulfil the obligations effectively with respect to the objectives of the agreement. On the other hand, compliance goes beyond implementation.8 For example, if a government does not comply with its procedural reporting obligations, it may nevertheless fulfil its substan- tive obligations and thereby effectively meet the objectives of the treaty.9
Moreover, compliance should not be confused with effectiveness. Effective- ness refers to the question of whether a treaty regime as a whole successfully accomplishes the aims of the treaty.10 This is not only dependent on whether the parties fulfil their commitments and thus whether the treaty provisions are complied with, it also depends on whether the substantive provisions of the treaty are adequately designed to actually achieve the objectives of the treaty. Compliance is neither necessary nor sufficient for the effective achievement of the treaty’s objectives.11
Based on this developed definition of compliance, a number of possible sources of non-compliance are described in the following section.
A wide variety of possible sources of non-compliance with treaty provisions can be identified. These sources can be categorised as treaty-independent, exogenous sources of non-compliance; and treaty-induced sources of non-compliance.12
(a) Treaty-independent sources of non-compliance
Within the treaty-independent sources, Mitchell identifies three principal sources of non-compliance: preference, incapacity, and inadvertence.13
(i) Preference
In the case of preference as a source of non-compliance, a State consciously decides not to comply. Generally, such a decision may result from two different considerations. Firstly, a State may prefer non-compliance because the benefits of compliance do not outweigh its costs.14 This situation may be due to a number of reasons. Some States may act as free-riders to exploit the economic benefits derived from non-compliance.15 Others may sign an agreement to gain the political advantages of membership, although they never intended to comply.16 States may also sign a treaty because of strong domestic and international pressures, although they are conscious that the agreement is not in their interests.17 Moreover, a State might have signed the agreement in good faith before detecting that compliance is not beneficial.18 Secondly, a
13 Ibid, 11–13.
state may actually consider the benefits of compliance to outweigh the costs, but nevertheless prefer to devote its limited resources to more pressing social problems.19
(ii) Incapacity
Apart from a State’s conscious decision not to comply, because of other pref- erences, non-compliance may be due to financial, administrative, or technological incapacities to meet the treaty obligations.20 Incapacity is particularly a problem for developing countries.21
(iii) Inadvertence
Finally, States may inadvertently fail to comply.22 Especially in the field of envir- onmental protection, the impacts and outcomes of policy strategies are often uncertain and unpredictable.23 For instance, a carbon tax established in good faith at a level considered sufficient to reduce carbon dioxide emissions by a certain percentage may actually prove ineffective to achieve this goal.24
(b) Treaty-induced sources of non-compliance
Apart from the above-mentioned treaty-independent sources of non-compliance, a possible treaty-induced source is the ambiguity of treaty obligations caused by imprecise treaty language.25 States may either use this ambiguity to intentionally exploit the regime or may interpret a treaty wrongly in good faith.26
(c) Conclusion
To safeguard compliance with treaty provisions in practice, these treaty- independent and treaty-induced sources of non-compliance must be addressed. Both the benefits of compliance and the costs of non-compliance must be increased. Financial, administrative, and technological incapacities of States must be overcome or reduced. Moreover, factors inducing compliance must be strengthened. Finally, the usage of imprecise treaty language must be avoided as far as possible. All this may be achieved by a well-designed treaty compliance system.27 The components of treaty compliance systems shall be outlined in the following section.
Treaty compliance systems are defined as “the subset of the treaty’s rules and procedures that influence the compliance level of a given rule”.28 They are comprised of primary rule systems, compliance information systems, and non-compliance response systems.29 The primary rule system deals with the substantive provisions of the treaty. It determines the level and sources of pressure and inducements for compliance and violation.30 The compliance information system deals with the collection, analysis, and dissemination of information on cases of compliance and non-compliance.31 It specifies the sources, the amount, the quality, and the usage of data on compliance.32 The non-compliance response system concerns responses which may be applied in cases of non-compliance.33 It determines the appropriateness, likelihood, type, and amplitude of possible measures responding to non-compliance.34If well designed, each of these systems can enhance compliance with treaty obligations. However, it is beyond the scope of this article to analyse each of the systems in depth. Rather, this article focuses on compliance information systems and non-compliance response systems, more precisely on formalised legal techniques and institutional mechanisms of reporting, verifying and assessing compliance, and responding to cases of non-compliance. These formalised procedures and mechanisms that are developed in treaty regimes shall be referred to as non-compliance procedures.35 A stricter definition excluding the mechanisms of information-gathering36 shall not be applied as it would ignore the so-called “compliance continuum”: assessment of compliance and responses to non-compliance can only be undertaken on the basis of information-gathering.37 For this reason, this article employs the first-mentioned broader and integrated definition of NCPs.
The 1987 Montreal Protocol was the first MEA providing for an NCP.38
Following this example, NCPs were provided for by a number of more recent MEAs. Examples include the 1997 Kyoto Protocol39 and the 1998 Rotterdam Convention40.41 The further development of effective NCPs is also supported by the United Nations Environmnet Programme (UNEP) Guidelines on Compliance adopted in 2002.42
The primary objective in establishing a NCP is to encourage States to comply with their treaty obligations.43 NCPs aim to prevent and facilitate compliance in the first instance.44 In cases of non-compliance, they primarily tend to assist the defaulting State in returning to compliance, rather than to incriminate and to punish for non-compliance.45 However, as illustrated further below, NCPs may also provide for more coercive measures as responses to non-compliance.46 On the whole, NCPs create a multilateral forum for dispute avoidance and alternative dispute resolution without the need to resort to external adjudication or institutions.47 They aim to afford a “softer” system of addressing non-
Protocol”); Ozone Secretariat, Non-Compliance Procedures, United Nations Environment Programme: http://www.unep.org/ozone/issues.shtml#NonComplianceProcedure.
compliance than that provided by traditional dispute settlement approaches under international law. 48
The next section will analyse whether and why the establishment of a NCP as a “softer” system to address non-compliance is reasonable in the context of MEAs. Possible deficiencies of the traditional approaches of addressing non- compliance with MEAs will be illustrated. Thereafter, advantages of NCPs will be outlined before a final conclusion will be drawn.
2.2 Is the establishment of Non-Compliance Procedures in multilateral environmental agreements Reasonable?
A principal characteristic of international law is that no central authority exists enforcing international obligations. Non-compliance can only be addressed by States unilaterally in the form of interstate claims based on the principle of State responsibility and the law of treaties and by applying the various forms of traditional dispute settlement.49 These traditional means of responding to non-compliance shall now be illustrated and possible deficiencies shall be identified.
(a) The principle of State responsibility
State responsibility is a principle of customary international law, which authorises an injured State in cases of a breach of an international obligation by another State to claim from the defaulting State firstly to cease the wrongful act, secondly to offer guarantees of non-repetition, and thirdly to make full reparation for the damages caused by the wrongful act.50 Additionally, the injured State may be entitled to suspend particular obligations of its own as a countermeasure to induce the defaulting State to comply with its commitments.51
Although the concept of State responsibility is recognised in principle, the details of the concept, including its preconditions and legal consequences, remain unclear. Moreover, particularly in the context of MEAs, the law of State responsibility seems to be inappropriate in many respects. The following illustration of its deficiencies commences with presenting the difficulties
concerning the principle’s criteria and legal consequences, especially in the context of environmental protection. Thereafter, more general comments are made on the principle’s inadequacies.
The principle of State responsibility firstly requires the determination of an internationally wrongful act by another State.52 A breach of an international obligation must be asserted.53 As the requirements made on this breach are not absolutely clear, it may not cover all types of behaviour the parties to a MEA may wish to discourage.54 Thus, the principle of State responsibility may not enable the enforcement of all obligations constituted by MEAs.
Additionally, State responsibility necessitates proof of the damage caused by the wrongful act. However, damage done to the environment is often not easily evidenced. It is often subject to considerable scientific uncertainties.55 Environmental harm may be subtle, cumulative, and may become overt only after a long period of time.56 Even if evidence of environmental damage can be obtained, the proof of a direct causal relationship between the wrongful act and the damage is particularly difficult in cases of damage done to global commons, such as the global climate or the ozone layer.57
Connected to the question of damage caused is the evidentiary issue that a particular State must be able to demonstrate that it has been injured by the breach. Whereas the proof of an injury will cause few problems in most bilateral environmental disputes, difficulties in proving the injury of a particular State arise if the damage is done to the global commons.58 In these cases no direct injury to a particular State is involved but rather the international community as a whole is affected.59 The issue then arises of how community rights can be enforced. As this problem is closely related to the issue of standing in judicial proceedings it shall be discussed in further detail in the context of dispute settlement procedures (DSPs) below.
Overall, it can be asserted that the preconditions of State responsibility involve considerable uncertainties regarding interpretation and evidence. Accordingly, the legal consequences raise a number of questions. The law of State responsibility entitles an injured party to full reparation, defined as “restitution, compensation and satisfaction”.60 However, defining restitution
or compensation for environmental damage is often problematic.61 Moreover, in many cases of environmental harm restitution and compensation prove inadequate. Restitution of the environment is often impossible, unfeasible, or not economically justifiable.62 Monetary compensation on the other hand is only possible if the damage is “financially assessable”.63 However, with environmental damage this is often not the case.64 Environmental harm is often not quantifiable in terms of damage to property or economic loss.65 Birnie and Boyle suggest that in these instances monetary compensation should be assessed by clean-up costs, costs of damage limitation, and possible reinstatement of the environment.66 However, due to a lack of State practice and judicial precedent this approach cannot yet be confirmed as current international law.67 Moreover, there are cases of environmental damage in which even a financial assessment as suggested by Birnie and Boyle is not feasible – for example, in cases of the irrecoverable loss of biodiversity. With regard to compensation it also has to be noted that the obligation to compensate for damage is not unlimited, but is confined to cases of proximity. Thus, regardless of whether international law in principle compensates for environmental damage, there will be some instances in which compensation is denied on grounds of non-proximity.68
(The difficulties involved with a suspension and termination of treaty obligations under Article 60 of the Vienna Convention on the Law of Treaties69 (VCLT), will be examined in the following section. As these difficulties are similar to those involved with a suspension of particular treaty obligations as a consequence of State responsibility, the latter difficulties will not be discussed at all.)
On the whole, a major concern regarding the traditional model of State responsibility is that its legal consequences are only responding to environmental damage that has already occurred, rather than preventing environmental harm in the first instance. However, the protection of the environment necessitates a more preventive, facilitative approach, as environmental damage is often irreversible and restitution impossible, infeasible, or not economically justifiable.70 Compensation may not retrieve the damage that has already occurred. The above-mentioned problems in verifying environmental damage
68 Ibid, 193.
can only be avoided if a preventive approach is applied.71 Another substantial objection to the concept of State responsibility is its inherent confrontational character, which has an adverse effect on State relations.72 This might explain why State responsibility has hardly been used in practice to enforce international environmental obligations.73 None of the modern pollution disasters, including Chernobyl, Amoco Cadiz, or Sandoz has resulted in an international claim against the State concerned.74
(b) The law of treaties
Apart from the law of State responsibility, Article 60 of the VCLT codifies ter- mination and suspension of treaties in cases of material breach. These are the explicit traditional responses to non-compliance. With respect to multilateral treaties, Article 60(2) of the VCLT entitles any “specially affected” party in the case of a material breach of the treaty by another party to terminate or suspend the operation of the treaty, in whole or in part, between itself and the defaulting State. The other parties to the treaty may unanimously agree to jointly terminate or suspend the treaty, in whole or in part, with regard to the defaulting State. A material breach of the treaty is defined by Article 60(3)(b) of the VCLT as “the violation of a provision essential to the accomplishment of the object and purpose of the treaty”.
The regime provided by Article 60 of the VCLT aims to urge the defaulting party to fulfil its obligations. However, while this may work for bilateral reciprocal treaties, the termination or suspension of the treaty is an inherently inadequate response to non-compliance regarding multilateral treaties intended to protect the global commons.75 In the latter case a suspension of the treaty would contradict the protection of the common good.76 The common interest would be more affected than that of the defaulting State.77 The suspension of the treaty would contradict the need to ensure the continuing participation of the defaulting State in the treaty, which is necessary to achieve the common goal of environmental protection.78 In addition, the termination or suspension of the treaty would offer few incentives for the non-complying State to return to compliance with the treaty.79 Moreover, as discussed above in the context of State responsibility, in cases concerning harm done to the global commons
71 Ibid, 179.
72 Ibid, 178.
it is difficult to identify a “specifically affected party” entitled to terminate or suspend the treaty.80
Apart from the inherent deficiencies of treaty suspension with respect to MEAs protecting the global commons, Article 60 of the VCLT also encounters problems with respect to bilateral reciprocal obligations. The determination of a material breach of treaty involves considerable uncertainties regarding its requirements.81 Moreover, as a high level of breach is required to constitute a “material breach”, Article 60 of the VCLT does not allow a response to all types of behaviour the parties of a MEA may wish to discourage. Finally, like the responses to non-compliance under the principle of State responsibility, termination and suspension of a treaty under Article 60 of the VCLT are responsive, confrontational measures. However, the effective protection of the environment necessitates a predominantly preventive approach to addressing non-compliance, thus avoiding adverse effects on State relations.
(c) Dispute settlement procedures (DSPs)
Related and interconnected to the deficiencies of State responsibility and the law of treaties, there are several inadequacies of the traditional DSPs as a means of addressing non-compliance with MEAs. The variety of traditional DSPs is listed in Article 33 of the United Nations (UN) Charter.82 They can be divided into two separate groups: (1) diplomatic means of dispute settlement, such as negotiation, inquiry, mediation, conciliation, and consultation; and (2) judicial means, such as arbitration and adjudication.83 While diplomatic means are frequently used by States to solve environmental conflicts,84 States typically avoid confrontational, judicial DSPs.85 They do not only fear their adverse effects on State relations,86 but also shy away from the complexity, length, and costs of international proceedings.87 Even if a plaintiff is willing to initiate proceedings, the initiation might fail, as it requires the consent of the proposed defendant.88 The difficulties of proof that judicial proceedings may involve, particularly in disputes regarding damage to the environment, have already been mentioned in the context of State responsibility.
Moreover, one substantial objection to traditional adversarial DSPs is their bilateral character. To be in a position to enforce an international obligation,
80 Ibid, 384.
a State must have standing. Standing requires the plaintiff to prove that it is an “injured state”.89 This issue was raised above in the illustration of State responsibility. The question was raised as to how community rights can be enforced within the traditional bilateral DSPs. A possible concept would be the recognition of “erga omnes” obligations in respect to which all States would have standing to enforce the obligations on behalf of the international community.90 According to Articles 42 and 48 of the 2001 draft Articles on the Respon- sibility of States of the International Law Commission (ILC), the possibility of such an actio popularis should be acknowledged under certain circumstances.91 However, the ILC draft Articles do not yet govern existing international law. The concept of “erga omnes” obligations is not yet generally accepted.92 The International Court of Justice (ICJ) has only applied the concept of obligations “erga omnes” in relation to specific human rights norms.93 The Court has not acknowledged the possibility of an actio popularis in any other area of international law.94 In the 1974 Nuclear Test case, the ICJ suggested that issues not involving any direct injury to a particular State but rather affecting the international community as a whole cannot be addressed by means of a bilateral claim for a declaratory judgment.95 Thus, currently, States do not have standing to enforce community rights. Obligations constituted in MEAs, aiming to protect the global commons, cannot currently be enforced under traditional
adversarial DSPs.
(d) Conclusion
In conclusion, it can be determined that the traditional adversarial means of addressing non-compliance are in many respects inappropriate in the context of MEAs. This is due to primarily the following reasons in the main. Firstly, traditional enforcement procedures may only be initiated by States.96 The State entitled to claim is not obliged to initiate a procedure.97 Its decision may be based on reasons not related to the environmental issues in the individual
97 Ibid.
case.98 In the past, States have proved reluctant to take action, trying to avoid the adverse effects on State relations and the length and cost-intensiveness of proceedings.99 In this respect, it also has to be noted that even if a State is willing to initiate proceedings, the initiation might fail because the envisaged defendant does not give its necessary consent.
Secondly, a major disadvantage of the traditional means of enforcement is the unsettled character of much of the law regarding State responsibility and the law of treaties.100 The traditional means may not provide responses to all types of infringements or may provide responses that are inappropriate with respect to environmental protection. Moreover, the causes of non-compliance are not taken into account by the traditional means of enforcement, which results in a lack of flexibility.101
Thirdly, the responsive nature of the traditional means of addressing non- compliance is inappropriate in cases of environmental harm. Environmental damage is often irreversible or difficult to prove, which necessitates a more preventative, facilitative approach to address non-compliance.
Finally, traditional measures are designed for the enforcement of reciprocal, bilateral obligations. They are not consistent with the multilateral, non-reciprocal character of most international environmental obligations, particularly of those obligations aiming to protect the global commons.
Well-designed NCPs are a possible means to overcome the described defi- ciencies of traditional approaches to addressing non-compliance. First, they not only enable single States to trigger the procedure regarding another party’s implementation but may also allow compliance procedures to be invoked jointly by a number of parties, by a party regarding its own implementation, or even by other institutions – for example, non-governmental organisations (NGOs).102 Thus, NCPs allow a much broader participation of the international community than the traditional procedures.103 Further, NCPs are a means to avoid lengthy and costly procedures. Unlike traditional DSPs they are not dependent on the consent of the defaulting State.104 The usage of NCPs avoids uncertainties regarding the requirements of State responsibility and material breach of treaty. NCPs also allow a wider range of more flexible and adequate responses that take into
98 Ibid.
99 Ibid, 178.
account the causes of non-compliance. Other than the traditional enforcement approaches, NCPs generally focus on preventive, facilitative measures, but they may also allow for more coercive means of compliance (“carrot and stick approach”). The basically preventive, facilitative, and cooperative nature of NCPs helps to avoid the emergence of disputes and adverse effects on State relations. Finally, NCPs are consistent with the non-reciprocal and multilateral nature of international environmental obligations and are capable of adequately addressing cases of harm done to the global commons. Their invocation is not dependent on the existence of an “injured state” or a “specially affected party”.105
In conclusion, NCPs are a possible means to avoid the inadequacies of the trad- itional approaches of addressing non-compliance with MEAs. Thus, in general, the establishment of NCPs in MEAs is reasonable and should be recommended. However, whether an NCP is an actual means to effectively overcome deficiencies largely depends on its design in the context of the particular MEA. Moreover, NCPs should only be seen as an additional measure of addressing non-compliance, not as a substitute for the traditional approaches. Even in the context of MEAs there may be cases in which there is a need to resort to the traditional responses providing reparation, countermeasures, and the possibility of treaty suspension and termination. Moreover, the traditional responses may also have a certain preventative effect as the possibility of their invocation may to some extent discourage States from breaches.106As has now been determined, the establishment of NCPs in MEAs is gen- erally reasonable. The main components of NCPs shall be examined in the following section.
2.3 The main Components of Non-Compliance Procedures
NCPs generally encompass four main components: reporting obligations, verification of provided information, assessment of compliance, and responses to non-compliance.107 In the following paragraphs, these components shall be further illustrated.
Self-reporting by parties is usually the first step in the compliance systems of most MEAs.108 Parties are obliged to report information on their achievements
106 Ibid, 43–44.
and difficulties in implementing their treaty obligations.109 In order to foster comparability and uniformity of the reports, guidelines and timetables for their provision are usually adopted.110 To ensure sufficient quality of data and timely reporting, technical and financial assistance may be provided to help particularly developing countries to fulfil their reporting requirements.111
Obligations to self-report have several important functions. Firstly, they act as an incentive to comply and respectively, as a deterrent to non-compliance.112 The likelihood that non-compliance will be revealed and will trigger a possible negative response or impact on reputation deters States from non-compliance.113 Moreover, reporting requirements serve as a means of confidence building.114 Transparency reassures parties that others are fulfilling their commitments and enables them to trigger responses in cases of non-compliance.115 Information about compliance is the basic requirement to facilitate the initiation of a pro- cedure and the selection of adequate responses.116 Finally, reporting obligations help to provide information on whether the treaty is operating effectively.117
However, effective information systems largely depend on the accuracy of the provided information.118 In this respect, an inherent problem of self-reporting is that States, reporting about their own performance in implementation, might be reluctant to report their failures.119 This problem of reliability can only be solved if the information provided by the States can be verified or at least complemented by other sources of information.120
A variety of information sources may be used to facilitate verification of the data provided by self-reporting. One possibility is to refer to reports provided by other parties. Convention on International Trade in Endangered Species
on Climate Change, opened for signature 9 May 1992, 31 ILM 851, art 12 (entered into force 21 March 1994) (“Climate Change Convention”).
115 Chayes, Handler Chayes and Mitchell, supra note 8, at 45. 116 Ehrmann, supra note 49, at 433–434.
of Wild Fauna and Flora (CITES), for example, requires both the exporting and the importing party to report on each transaction.121 Moreover, objective information can be provided by NGOs and international organisations.122 Finally, a secretariat or compliance committee can carry out independent data collection
– for instance, by direct inquiries, on-site inspections, and monitoring.123 For example, the Implementation Committee established by the Montreal Protocol is entitled to request additional information or, upon the invitation of the party concerned, to carry out on-site information-gathering.124
In a third step, the obtained information needs to be assessed to determine whether, and eventually why, a case of non-compliance with treaty obligations has occurred.125 The compliance assessment is usually assigned to a compliance committee. Such a committee can either be established as an ad hoc panel or as a permanent body.126 Usually, the committee is designed as a standing body.127 The composition of the committee should ensure – for example, by means of rotation or equitable geographical distribution – that the committee members represent the interests of all parties.128 The committee can either be composed of government representatives or, to ensure impartiality and objectivity, of independent experts serving in a personal capacity.129 If a case of non-compliance can be identified by the compliance committee, NCPs provide for a variety of responses.
Usually MEAs primarily apply a soft “managerial” approach of responding to non-compliance. Responses are principally of a facilitative, cooperative nature aiming to help parties to return to compliance.130 They may include capacity- building measures like the provision of financial and technical assistance,131
123 Chayes, Handler Chayes and Mitchell, supra note 8, at 48. 124 Kiss and Shelton, supra note 117, at 595.
125 Ehrmann, supra note 49, at 436.
126 Ibid, 439.
127 Ibid.
128 Ibid, 440.
transfer of technology,132 training and education.133
However, more punitive, stronger measures may also be provided. These may comprise publication of cases of non-compliance and issuances of cautions.134 As well, expulsion or suspension of treaty rights and privileges,135 and trade sanctions136 may be provided to enforce compliance. Also, financial penalties are conceivable as enforcement measures, although such penalties have not yet been provided for in MEAs.137
The question as to whether MEAs should only apply soft “managerial” measures or should also include harder enforcement measures is highly controversial in legal literature and practice. In the following section, the arguments of the advocates of both the soft “managerial” approach and the harder “enforcement” approach are illustrated, before a personal point of view is taken.
Hazardous Wastes and Their Disposal UNEP/CHW.6/40 (2003) (Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, opened for signature 22 March 1989, 28 ILM 657 (entered into force 24 May 1992) (“Basel Convention”)).
3. ResPONses TO NON-COmPLIaNCe: “sOFT” maNageRIaL aPPROaCh OR “haRD” eNFORCemeNT aPPROaCh?
3.1 managerial school
According to the managerial school, a soft managerial approach should be pursued in promoting compliance and addressing non-compliance, relying primarily upon cooperative, facilitative problem-solving.138 The most prominent representatives of this school are Abram Chayes and Antonia Handler Chayes.139 After carrying out extensive empirical research, they argue firstly that States have demonstrated a strong propensity to comply with their commitments.140 Secondly, the Chayes’ assume that non-compliance, when it occurs, is almost never a result of wilful disobedience, but is rather caused by shortcomings within the treaty regime or the non-complying State.141 These shortcomings are identified as ambiguity of treaty obligations caused by imprecise treaty language,142 lack of capacity of States to fulfil their commitments,143 and uncontrollable social or economic changes.144 Thirdly, the Chayes’ hypothesise that sanctions have hardly ever been used in practice and are seldom effective if they are used.145 On the whole, the Chayes argue that because non-compliance is generally a problem of deficiencies rather than intentional disobedience, and because sanctions have proven to be unsuccessful, treaty regimes should adopt a managerial rather than an enforcement approach.146Regarding their first hypothesis that States are usually inclined to comply with their treaty obligations, the Chayes ascertain three main factors con- tributing to a State’s propensity to comply. Firstly, the Chayes allege that States do not conclude international agreements simply on a pro forma basis. They put considerable effort into negotiating agreements and do not form and join them without due consideration.147 The Chayes assume that treaties are hardly ever completely contrary to the interest of a participating State.148 Secondly, the Chayes argue that States tend to comply because compliance is usually the most efficient choice for them.149 Compliance reduces decision costs and conforms
140 Ibid, 3–9.
141 Ibid, 9–17.
142 Ibid, 10–13.
143 Ibid, 13–15.
144 Ibid, 15–17.
145 Ibid, 29–33.
146 Chayes and Handler Chayes, supra note 25. 147 Ibid, 3.
148 Ibid, 4–7.
149 Ibid, 4.
to bureaucratic modes of action.150 Thirdly, the Chayes assume that States have a propensity to comply simply because treaties, as binding agreements, impose an obligation to comply.151
To support their hypothesis that sanctions have rarely been used in practice and are almost always ineffective, the Chayes argue that the employment of sanctions is, from a political perspective, extraordinarily difficult for States.152 Moreover, sanctions are very costly both for the sanctioned and for the sanctioner.153 The Chayes also question the legitimacy of sanctions, because usually only the most powerful States can use them against economically and politically weak countries.154
3.2 enforcement school
The arguments of the managerial school have been strongly criticised by the supporters of an enforcement approach. This enforcement approach promotes stronger means to deter non-compliance and coerce compliance. The so-called enforcement school builds on traditional realist models of State behaviour.155 Among its main representatives are George W Downs, David M Rocke and Peter N Barsoom.156 They argue that the managerial approach is much too optimistic about the scarcity of intentional disobedience and thus much too quick to deny the importance of stronger enforcement measures.157 On the basis of a game theory model and their own review of treaty regimes, they declare that the high rate of compliance with treaty regimes, noticed by the Chayes, cannot be explained by the States’ strong propensity to comply, but is rather due to the fact that the majority of regimes have imposed only minor obligations on the States, which can easily be achieved.158 According to Downs et al, a review of those agreements requiring large changes in behaviour reveals not only a greater number of cases of non-compliance but also a significant number of
150 Ibid.
151 Ibid, 8–9.
152 Ibid, 63–67.
153 Ibid.
154 Ibid, 6, 107–108.
cases of self-interested disobedience.159 Downs et al assume that in the future inducements to cheat will increase, as more treaties will require significant behavioural changes.160 They conclude that in addition to facilitative managerial means of inducing compliance, the employment of enforcement measures is necessary to discourage wilful non-compliance.161
3.3 evaluation
The disagreement between the managerial and the enforcement school can essentially be reduced to two contentious issues. Firstly, the managerial and the enforcement school act on different assumptions regarding the significance of wilful disobedience as a source of non-compliance. The managerial school assumes that non-compliance is almost never a result of intentional disobedience, whereas the enforcement school argues that with respect to treaty regimes imposing stricter obligations on States a significant number of cases of non-compliance have occurred as a result of self-interested wilful disobedience. Both schools justify their assumptions with reference to their own review of treaty regimes.
The second contentious issue concerns the question of whether in cases of intentional disobedience sanctions are an effective means of responding to non-compliance. The enforcement school assumes that sanctions are effective, whereas the managerial school negates the effectiveness of sanctions.
Regarding the issue of wilful disobedience as a significant source of non- compliance, independent empirical research verified the Chayes’ hypothesis that historically most implementation problems were not intentional violations.162 However, even if it was determined that in the past intentional disobedience hardly ever occurred, no reliable predictions can be made for future treaty regimes. It is very likely that the probability of wilful disobedience is dependent on the strictness of the obligations constituted in a treaty regime. With an increasing strictness of obligations the incentives for self-interested non- compliance increase.163 Downs et al assume that in future treaty obligations will become deeper and stricter.164 With regard to the environment, this can indeed be expected. The increasing global environmental problems threatening the international community, including climate change, depletion of the ozone layer, or desertification require considerable behavioural changes and thus much
159 Ibid, 391–397.
160 Ibid, 380.
161 Ibid, 398.
stricter commitments. The increasing use of more stringent obligations in MEAs can be recognised, for instance, in the Kyoto Protocol. Stricter obligations demand considerable efforts from States and increase the danger of competitive disadvantages. Therefore, these obligations also increase the incentives for non- compliance.
The probability of wilful disobedience is also dependent on the values and attitudes of the actors representing the States. When their composition changes so may their values and attitudes with respect to compliance. Thus, in accordance with Downs et al, it can be assumed that a considerable possibility of wilful disobedience cannot be denied. 165
Even the Chayes, who expressly claim that non-compliance is hardly ever due to intentional violation, implicitly seem to acknowledge the danger of wilful disobedience.166 They state that information-gathering, promoting transparency, “exercises deterrence against actors contemplating non-compliance”.167 Moreover, they assume that a policy tool available in a managerial regime is “the threat of various manifestations of disapproval: exposure, shaming, and diffuse impacts on the reputation and international relationships of a resisting party”.168 However, “deterrence” and “threat” are only necessary, if one acknowledges the possibility of wilful disobedience and takes it seriously.169
Thus, one can presuppose that the possibility of wilful disobedience by States exists and should be taken seriously. Even the managerial school acknow- ledges that some forms of coercion are necessary. The Chayes would not reject the employment of measures like publication of cases of non-compliance and issuance of cautions. Rather, they disapprove “sanctions” as “enforcement” measures, including the use of military or economic actions and the expulsion or suspension of rights and privileges of a party to a treaty.170 Thus, the real contentious issue between the managerial and the enforcement school is the necessity, effectiveness, and reasonableness of sanctions.
In the following paragraphs, the question of whether sanctions should be provided for in MEAs shall be discussed in detail. In doing so the term “sanction” is applied as a generic term for suspension of treaty rights and privileges, trade sanctions, and financial penalties.
The foregoing discussion concluded that wilful disobedience is a possible source of non-compliance and may be of particular concern with regard to treaties imposing stringent obligations. Arguably therefore, the most rigid responses should be employed to actually enforce these obligations. This
applies especially to those obligations that are crucial for the achievement of the treaties’ objectives. The possibility of sanctions would increase the costs of non-compliance and thus potentially deter States from non-compliance in the first instance, and induce a non-complying State to return to compliance. It can be assumed that in some cases of wilful non-compliance mere publication of non-compliance and the issuance of cautions will not suffice to convince a deliberately non-complying State to return to compliance. Moreover, as has been concluded above, the traditional measures of addressing non-compliance do not in every case provide adequate responses to non-compliance, particularly with respect to obligations concerning environmental protection. Thus, in specific cases there is a need for more effective enforcement measures.
However, the effectiveness of sanctions can be doubted in several respects. Firstly, the possibility of punishment as a deterrent to disobedience is highly controversial in legal theory. Secondly, sanctions may not be an effective means to convince an intentionally defaulting State to return to compliance in every case. Thus, a suspension of treaty rights is only effective against those States that are obtaining benefits or assistance from the treaty regime.171 With respect to States that do not rely on such benefits, suspension of rights and privileges may be ineffective.172 Accordingly, economic sanctions are effective against economically weak countries, but are less effective or of no effect against economically powerful States, depending on the scope and kind of the applied sanction.173
In this respect it has to be noted, however, that in contrast to unilateral measures, multilateral sanctions, which may be employed by NCPs, may have a much stronger impact even on economically more powerful countries. However, as argued by the managerial school, it is politically and economically extremely difficult to impose sanctions on powerful States,174 even if the sanctions are imposed multilaterally by the parties of a treaty as opposed to unilaterally. States, having to decide whether a sanction should be imposed on a powerful country, may fear political and economic losses, which may restrain them from imposing sanctions. However, the problem of States shying away from a decision to impose sanctions can be avoided if the NCP provides for penalties that are imposed without the requirement of a decision by States. These can be automatic penalties or penalties employed by an independent committee.
Apart from the question of effectiveness of sanctions, there are a number of other objections against the reasonableness of sanctions. For instance, the fact that sanctions entail an element of disparity, as they are more effective and more likely to be employed against weak countries, argues against the provision
of sanctions,175 particularly against sanctions at the discretion of the parties to the treaty. Also, if measures provided for by an NCP are perceived as too strong or as being punitive, some countries might be reluctant to join the treaty.176 This is of particular concern if those countries whose participation is essential for the achievement of the treaty’s objectives are deterred from entering the treaty. However, in this respect it should be noticed that sanctions not only act as a deterrent to participation in the treaty regime, but may in contrast also be regarded as a crucial means to secure compliance and prevent competitive disadvantages.177 In this sense, they can act as means of confidence building. It can be argued that sanctions function contrary to the objective of NCPs to avoid adverse effects on State relations. Indeed, this danger cannot be denied. However, the danger can be minimised if sanctions are provided for which are independent of a decision of the parties to the treaty.
Finally, one significant problem associated with sanctions is the actual selection of the kind of sanction that should be applied. In this respect, it has to be noticed that the suspension of particular rights may be an efficient means in some cases, whereas in others it may prove inefficient. For example, the suspension of voting rights in a regime that presently operates only by consensus would be a useless sanction.178 In addition, with regard to economic sanctions, in particular, it must be ensured that they do not conflict with international regulations, especially with WTO provisions.179
Despite the objections that can undoubtedly be made against the employment of sanctions, their provision in NCPs seems to be the only option at present to enforce compliance in certain cases – for example, in cases where the enforcement of obligations is important for achieving the objective of the treaty and cannot sufficiently be attained by other measures. However, the negative impacts of sanctions need to be minimised and an ineffective employment of sanctions needs to be avoided. Thus, sanctions should only be available as additional means to softer, cooperative and facilitative measures. To minimise adverse effects on State relations and to avoid an uneven application against weak countries, sanctions should not necessitate a decision by the conference of the parties, but should be applied automatically or by an independent compliance committee. Moreover, sanctions should be carefully tailored to the needs of the specific treaty regime.180 They should only be provided for in the treaty and employed in specific cases after certain considerations have been taken into account, which I will define as
177 Ibid, 57–58.
the “principle of proportionality” in imitation of a concept developed under German constitutional law. Firstly, sanctions must be a legitimate means to enforce compliance. They must not violate international law. With respect to economic sanctions it has to be ensured that they do not infringe WTO agreements. Secondly, sanctions must be an appropriate means to enforce the specific obligation. If the nature of the obligation is general and soft, leaving much of its interpretation and implementation to the discretion of individual parties, sanctions as strong enforcement measures cannot be regarded as appropriate.181 Moreover, the appropriateness of sanctions depends on the causes of non-compliance. Sanctions are only appropriate if non-compliance is caused by wilful disobedience. If a lack of capacity were to be identified as a source of non-compliance, enforcement by sanctions would be misguided. A third condition required by the principle of proportionality is the necessity of sanctions as enforcement measures. Sanctions should only be employed as an ultimate means of enforcement, if other “milder” but nevertheless effective means of addressing non-compliance are not available. Such “mild” but effective means include, for example, the publication of non-compliance or the issuance of cautions. Traditional adversarial means should not be included within this category due to their deficiencies as discussed above. Finally, according to the principle of proportionality, sanctions need to be proportionate with regard to the obligation they aim to enforce and the application of the sanction in the specific case. Sanctions should only be imposed to enforce stringent obligations important for the achievement of the treaty’s objectives. Moreover they should only be applied in repeated and severe cases of non- compliance.
3.4 Conclusion
In conclusion, the question as to whether responses to non-compliance, provided for in NCPs, should apply a soft managerial or a hard enforcement approach can only partly be answered in a general statement. NCPs should always encompass soft managerial measures but also allow for harder measures, like the publication of cases of non-compliance and the issuance of cautions. But whether sanctions as enforcement measures should be provided for and employed in situations of non-compliance is a question for the specific treaty regime, the specific obligation, and the specific case of non-compliance.
In the following discussion, the NCP under the Cartagena Protocol will be examined as a practical example of an NCP. After illustrating the procedure and its creation, the question as to whether the establishment of a NCP under the Protocol was reasonable will be answered. The article then examines whether
the non-compliance response system provided for under the Protocol’s NCP follows the managerial or the enforcement approach, before addressing the final question as to whether, in this respect, a reasonable decision was made.
4. The COmPLIaNCe PROCeDURe UNDeR The CaRTageNa PROTOCOL
4.1 Constituting a Non-Compliance Procedure under the Cartagena Protocol: The Negotiation of article 34
Article 34 of the Cartagena Protocol sets out the following compliance provision:182
The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first meeting, consider and approve cooperative procedures and institutional mechanisms to promote compliance with the provisions of this Protocol and to address cases of non-compliance. These procedures and mechanisms shall include provisions to offer advice or assistance, where appropriate. They shall be separate from, and without prejudice to, the dispute settlement procedures and mechanisms established by Article 27 of the Convention.
Article 34 is supplemented by Article 33 of the Protocol that obliges each Party to monitor the implementation of its obligations under the Protocol and to report on measures taken for implementation.
The constitution of an NCP was a “sensitive issue” in the negotiation of the Protocol.183 The adoption of the Protocol was prepared by the Open-ended Ad Hoc Working Group on Biosafety (BSWG) set up by the Conference of the Parties to the Convention on Biological Diversity (CBD) at its second meeting in Jakarta in November 1995.184 Within the BSWG the negotiation of monitoring and compliance was assigned to the open-ended Contact Group II (CG-2), established at the third meeting of the BSWG (BSWG-3) in October 1997.185 During the negotiations in the CG-2 it was agreed early on that there
should at least be an enabling provision on compliance, but its contents were disputed.186 Some EU member States in particular demanded a definite provision to establish an NCP and a deadline to be set at the first meeting of the Parties (COP/MOP-1).187 They regarded an NCP as an important element of a modern treaty that would substantially enhance its effectiveness.188 In contrast, the US and some other States postulated to leave the decision about whether a NCP should be constituted to the COP/MOP.189 A number of countries demanded that the NCP, if actually established, should focus on assisting implementation rather than on imposing sanctions.190 Article 34 was finally agreed upon in February 1999 at the sixth meeting of BSWG (BSWG-6) in Cartagena when the negotiators agreed to explicitly emphasise that the compliance measures should be cooperative.191
The resulting wording of Article 34 of the Protocol is an “enabling pro- vision”.192 It does not actually establish an NCP but provides a framework for its establishment by the COP/MOP. A similar approach was applied in other MEAs, such as the Montreal Protocol (Article 8),193 the Kyoto Protocol (Article 17)194 and the Rotterdam Convention (Article 17).195 However, Article 34 of the Protocol is among the more progressive compliance provisions found in MEAs, as it definitely constitutes and schedules the establishment of a NCP.196
Article 34 of the Protocol expressly states that the procedures and insti- tutional mechanisms shall be cooperative. They shall promote compliance with the provisions of the Protocol and address cases of non-compliance. Article 34 also requires that the procedures and mechanisms include provisions on advice and assistance. Moreover, it explicitly states that future compliance provisions
186 Ibid, 399.
187 Ibid.
188 Ibid, 399–400.
189 Ibid.
190 Ibid, 400.
should be separate from the DSP established under Article 27 of the CBD. Beyond that, the form of the future NCP is left open to the decision of the COP/MOP-1.197
4.2 Outline of the Negotiation Process until the Final adoption of Compliance Procedures and mechanisms by the COP/mOP-1
The decision of the COP/MOP-1 on the adoption of compliance procedures and mechanisms, as envisaged in Article 34 of the Protocol, was prepared by the open-ended ad hoc Intergovernmental Committee for the Cartagena Protocol (ICCP), established by the Conference of the Parties to the Protocol (COP) in 2000.198 It was open to all parties to the CBD, as well as to governmental, intergovernmental and non-governmental observers.199The discussion on compliance procedures in the first meeting of the ICCP (ICCP-1), held in December 2000 in Montpellier, started by reviewing the existing NCPs in CITES, the Montreal Protocol and the Convention on Long-Range Transboundary Air Pollution and its Protocols, as well as an illustration of the UNEP Draft Guidelines on Compliance and the (at that time ongoing) negotiation of NCPs under the Basel Convention, the Climate Change Convention, and the Kyoto Protocol.200 ICCP-1 ended with the decision to invite Parties to submit their views on a compliance system on the basis of a questionnaire.201 The questions covered issues such as the “Objectives, nature and principles”, the “Invocation of the procedure”, the “Structure and functions of the institutional mechanism”, “Consequences of non-compliance”, and the “Role of the Secretariat and the Conference/Meeting of the Parties”.202 Thus, the questionnaire already determined some of the key issues of the future negotiations. The views submitted by the Parties were compiled and reported on by the Executive Secretary203 and thereafter reviewed by an established open- ended meeting of experts on compliance, which met before the second meeting of the ICCP.
The discussion of the meeting of experts was focused on the draft
procedures and mechanisms for a compliance system set forth in the annex to the report of the Executive Secretary204.205 It resulted in revised, more concise draft procedures and mechanisms for a compliance system. Disagreements were reflected by brackets within the provisions. The structure of the provisions agreed to by the meeting of experts was retained until the COP/MOP-1’s final decision on compliance procedures.
During the second meeting of the ICCP (ICCP-2) in Nairobi in October 2001, the issue of compliance was taken over by the established Working Group
II.206 Focusing on the bracketed provisions devised in the draft procedures and mechanisms for a compliance system, elaborated by the meeting of experts, intensive negotiations took place resulting in a chairman’s text, containing a draft recommendation of the ICCP.207 After some amendments by the working group,208 this draft recommendation was finally adopted by the ICCP-2.209 The Parties to the Convention and other States were invited to submit their views and understandings regarding the bracketed text contained in the draft before the third meeting of the ICCP (ICCP-3) in The Hague in April 2002.210
During ICCP-3 the issue of compliance was again taken over by the Working Group II. Following extensive discussions on the objective, nature, and underlying principles of the NCP and its institutional mechanism, the working group decided to establish an open-ended contact group to address the outstanding areas of bracketed text of the draft procedures and mechanisms.211 This contact group could successfully reach some agreement on the measures to promote compliance and address cases of non-compliance, as well as on some issues of information and consultation.212 But despite exhaustive discussions the contact group was unable to agree on other bracketed text.213 The working group eventually decided to add to the draft recommendation, over and above the draft procedures and mechanisms in Annex I containing the bracketed text, a second version of the draft procedures as Annex II, containing all the options
regarding the bracketed text. This aimed to facilitate discussion on the issues at the COP/MOP-1.214 The amended recommendation was finally adopted by the ICCP-3.215
On the whole, the ICCP managed to elaborate a set of compliance proced- ures, but despite extensive discussions significant disagreement regarding crucial issues in the compliance mechanism remained. These included the following: whether the principle of common but differentiated responsibilities should be a guiding principle in the compliance procedure; in which capacity the members of the compliance committee should serve; whether one party could trigger the compliance procedure in respect to another party; whether the COP/MOP could trigger the compliance procedure; what sources of information could be considered by the compliance committee; and, the most controversial issue, what measures should be taken in cases of non-compliance.216
Thus, the COP/MOP-1, held in February 2004 in Kuala Lumpur, Malaysia, was faced with several unresolved, substantial issues. In the COP/MOP-1 the issue of compliance was taken over by the established Working Group II.217 To enhance a final decision, the working group established an open-ended contact group on compliance.218 This contact group considered the outstanding issues of compliance based on the draft procedures forwarded by the ICCP-3. However, the contact group could not reach consensus on all the contentious issues.219 Thus, they formed the group of Friends of the Co-Chairs.220 This group finally managed to balance the various interests.221 Their draft procedures and mechanisms on compliance under the Cartagena Protocol were approved by the working group and finally adopted by the COP/MOP-1 as decision BS-I/7222.223
4.3 Compliance Procedures and mechanisms under the Cartagena Protocol as adopted by the COP/mOP-1 in Decision Bs-I/7
The NCP established under the Cartagena Protocol comprises all four com- ponents of NCPs identified in the second part of this article: reporting and
215 Ibid, 16–17.
216 Ibid, 34–44.
verification, assessing compliance and responding to non-compliance. How- ever, it must be noted that the decision BS-I/7 of the COP/MOP-1 on the compliance procedures and mechanisms under the Cartagena Protocol, which shall be outlined in the following section, does not deal with the reporting and monitoring obligation of the Parties under Article 33 of the Protocol. It only addresses the development of compliance procedures and mechanisms under Article 34 of the Protocol. Although reporting and monitoring obligations under the Protocol are part of NCPs, and included within the definition of a NCP as applied in this article, they shall not be further discussed herein.
Decision BS-I/7 of the COP/MOP-1 determines in section I of its annex the objective, nature, and underlying principles of the compliance procedures and mechanisms. The procedures and mechanisms shall promote compliance and shall be of a non-adversarial and cooperative nature.224 They “shall be guided by the principles of transparency, fairness, expedition and predictability”. They shall also “pay particular attention to the special needs of developing country Parties” taking fully into consideration the difficulties they face in implement- ing the Protocol.225
The decision of the COP/MOP-1 created a standing Compliance Committee226 as a new institution under the Protocol. This Committee consists of 15 members nominated by the Parties and elected by the COP/MOP on the basis of three members from each of the five United Nation’s regional groups. All Committee members shall serve in a personal capacity and not as govern- mental representatives. The Committee is charged with promoting compliance, providing advice and assistance to Parties on matters relating to compliance, addressing cases of non-compliance, and taking measures or making recommendations to the COP/MOP. The “Rules of Procedure for the Meetings of the Committee” were approved by the COP/MOP at its second meeting in June 2005.227
Section IV of the annex of Decision BS-I/7 contains fairly detailed provisions on the compliance proceedings under the Protocol. Compliance proceedings may be triggered by submissions by “(a)ny party with respect to itself ” or by “(a)ny party, which is affected or likely to be affected, with respect to another Party”. In the latter case the Party concerned is given the opportunity to respond within a specified timeframe.
When examining possible cases of non-compliance the Committee shall con- sider relevant information from the Party concerned and from any Party that has made a submission with respect to that Party. It may also seek or receive information from other sources, such as the Biosafety Clearing-House, the COP to the CBD, the COP/MOP, and subsidiary bodies of the CBD and the Protocol, as well as relevant international organisations and biosafety experts. Any explicit reference to the possibility that the Committee may seek or receive information from the Secretariat or from NGOs was deleted in the final decision. However, the list of possible sources is not exhaustive so that the Committee will have the discretion to consult other sources of information as well.228
Decision BS-I/7 provides for measures to be taken by both the Committee and the COP/MOP to promote compliance and to address cases of non-compliance. The Committee may provide advice or assistance to the Party concerned, and may make recommendations to the COP/MOP with regard to providing financial and technical assistance, technology transfer, training, and other capacity- building measures. It may also request or assist the Party concerned to elaborate a compliance action plan with respect to achieving compliance with the Protocol within a specified timeframe. The Party concerned may also be invited to submit progress reports to the Committee. The Committee may report to the COP/MOP on the efforts made by Parties to return to compliance.
Upon the recommendations of the Committee, the COP/MOP may provide financial and technical assistance, technology transfer, training, and other capacity-building measures. The COP/MOP may also issue a caution to the non-complying Party and request the Executive Secretary to publish cases of
2005” in International Institute for Sustainable Development Earth Negotiations Bulletin (International Institute for Sustainable Development, Winnipeg, 1999) Vol 09 No 320 (also available at: http://www.iisd.ca).
non-compliance in the Biosafety Clearing-House. In cases of repeated non- compliance, the possibility of further measures may be decided by the COP/ MOP-3; and in the future, within the overall review process of the Protocol under Article 35 of the Protocol.
Decision BS-I/7 specifies criteria for the selection of the measure that shall be applied in a particular case of non-compliance. According to these criteria the Committee and the COP/MOP in deciding on one or more of the above measures should take into account the capacity of the Party concerned to comply, and “such factors as the cause, type, degree and frequency of non-compliance”.229 However, this list of criteria is not exhaustive so that the Committee and the COP/MOP may also consider other factors, such as the importance of the violated provision. Stronger measures should only be considered if softer measures are not effective.
The crucial question to ask is “What would constitute a case of non- compliance?” Which obligations are the NCP concerned with? Unlike the NCP for the Kyoto Protocol,230 the NCP for the Cartagena Protocol does not name specific obligations that may, in the event of suggested non-compliance, be referred to the NCP. The questions as to what are cases of non-compliance and respectively, which obligations does the NCP regard, are neither explicitly answered by the Protocol itself nor by the Decision BS-I/7 of the COP/MOP-1. Further, this issue was not clarified during the negotiations for the compliance procedure, as far as is apparent from the documentation provided. Rather, this documentation only refers generally to non-compliance with the Parties’ “obligations”.231 Thus, it could be argued that cases of non-compliance concern each of the obligations constituted by the Protocol. The term “compliance” was defined above as the conformity of an actor’s behaviour with explicit treaty rules. Accordingly, a case of non-compliance under the Protocol would then be each violation by a Party to the Protocol of each obligation constituted by the Protocol.
However, the discussion of how to define cases of non-compliance during the negotiation of the NCP under the Montreal Protocol indicates that the above analysis of a case of non-compliance is not the only possible conception. Under the Montreal Protocol a list of “possible situations of non-compliance with the
231 E.g., Compliance (Article 34): Summary of Views or Understandings on the Contents in Square Brackets in the Text of the Draft Procedures and Mechanisms on Compliance under the Cartagena Protocol on Biosafety UNEP/CBD/ICCP/3/4 (2002) 6.
Protocol” was developed by an ad hoc group of legal experts232 but was rejected by the MOP of the Montreal Protocol.233 With respect to the Montreal Protocol, not every failure of an obligation is acknowledged as a case of non-compliance but situations of non-compliance are determined on a case-by-case basis.234 It has been argued that this procedure corresponds with the collective character of the NCP.235 However, such a procedure involves a considerable degree of legal uncertainty. This is particularly problematic with respect to sanctions as enforcement measures, as provided for in the Montreal Protocol, are in the form of suspension of treaty rights and privileges. Effective enforcement and equal treatment of States are endangered if the question as to what constitutes non- compliance is decided on a case-by-case basis.
Until now, sanctions have not yet been provided under the Cartagena Protocol. Thus, the problem of legal uncertainty may not be considered to be as drastic as in the context of the Montreal Protocol. However, as the Cartagena Protocol provides for some harder measures, namely the publication of cases of non-compliance and the issuance of cautions, equal treatment of States nevertheless necessitates some clarification.
Even if a broad definition of non-compliance was acknowledged,236 it might in some instances be unclear as to whether a violation of an obligation could be assumed and a case of non-compliance brought. The determination of a violation is particularly difficult if the obligation is conceptualised very broadly, leaving a large scope for interpretation and implementation to the decision of each particular Party. For example, this is the case regarding the obligation provided by Article 16(1) of the Protocol to “establish and maintain appropriate mechanisms, measures and strategies to regulate manage and control risks” of LMOs. Moreover, not every violation of each obligation of the Protocol may reach a level of concern that necessitates subjecting it to the NCP.237
In conclusion, clarification regarding which obligations and violations
should be referred to the NCP under the Protocol is desirable in the interests of legal certainty. Particularly if a future COP/MOP decided to provide for sanctions – assuming that the adoption of sanctions is permitted under the Protocol, which will be examined below – categories of non-compliance should be pre-defined and associated with specific non-compliance responses.
4.4 Is the Creation of a Non-Compliance Procedure under the Cartagena Protocol Reasonable?
The negotiation of the NCP under the Protocol and its provisions has been illustrated above. The question shall now be posed as to whether the creation of a NCP under the Protocol is reasonable. The Parties to the Protocol constituted a NCP because they regarded it as an important element of a modern treaty and assumed it would substantially enhance its effectiveness.238 However, at first glance the establishment of a NCP under the Protocol may appear somewhat surprising. As the second part of this article illustrated, the main reason for establishing a NCP is to avoid the deficiencies commonly encountered in the traditional adversarial means of enforcement. These deficiencies are particularly relevant with regard to MEAs that aim to protect the global commons. At first view, the transboundary movement of LMOs under the Protocol involves only two countries and does not appear to concern an environmental problem of a global character. Therefore, it could be assumed that the traditional means of enforcement are sufficient with respect to the Protocol. However, due to the following reasons, this is not the case.
Firstly, the assumption that the transboundary movement of LMOs involves only two countries is arguable. Transboundary movements of LMOs also concern third countries, as intentionally or unintentionally released LMOs, like seeds, have the potential to cross boundaries and enter neighbouring States. This concern is of considerable significance as the release of LMOs is irreversible and may cause irreversible damage to the neighbouring countries’ biodiversity and potential risks to human health.
Secondly, the presumption that the Protocol does not regard an environ- mental problem as being of a global character is questionable. The main objective of the Protocol is the protection of biodiversity from possible adverse effects of LMOs.239 In view of the Preamble of the CBD which emphasises the intrinsic value of biodiversity and holds that “the conservation of biological diversity is a common concern of mankind”,240 it could be argued that States seem to acknowledge biodiversity as a global commons which needs to be
238 Ibid, 399–400.
protected not only in the interest of a particular sovereign State, but in the wider interests of the global community.241 The NCP under the Protocol enables the community of States to commonly protect this interest.
Finally, even if we assumed that the transboundary movement of LMOs concerns only two countries, being the Party of export and the Party of import, the traditional adversarial enforcement approaches reveal deficiencies that need to be avoided and overcome by the means of a NCP. In this regard, the arguments developed in the second part of this article dealing generally with the question as to whether the establishment of a NCP is reasonable should be referred to. However, some remarks specifically regarding the Protocol shall be made at this point.
Whereas, with respect to the Protocol, it may not be too difficult to reason that the country of import or the county of export are specially affected parties and respectively, injured States, as required by Article 60 of the VCLT and the principle of State responsibility, it is likely that the range of violations the Parties to the Protocol aim to deter will not always amount to a “wrongful act” or a “material breach”. In addition, with respect to reparation as a consequence of State responsibility, particular problems arise regarding damage to biodiversity. A possible release of LMOs into the environment is irreversible and may cause irreversible damage to biodiversity. Thus, restitution as a means of reparation may be impossible.
Moreover, a loss of biological diversity is not financially assessable, so that monetary compensation offered by the law of State responsibility is hardly quantifiable. The mainly responsive nature of the traditional means of enforce- ment is inappropriate with respect to the protection of biodiversity from harm caused by LMOs. As the release of LMOs may lead to irreversible damage of biodiversity, a primarily preventative approach is necessary, which can be applied by a NCP. The necessity of a preventative approach also becomes apparent with a view to the particular obligations the Protocol sets out. For example, a responsive approach, as provided by the traditional means of enforcement, is useless with respect to the obligation of the country of export to notify the country of import of an intended transboundary movement of LMOs.242
Finally, as noted above, the invocation of traditional adversarial DSPs is dependent on the consent of the defendant. With respect to the Protocol, the dispute settlement provision of Article 27 of the CBD, which is referred to by Article 34 of the Protocol, does not provide for a compulsory adversarial DSP. Rather, Article 27 provides for the possibility that States may specifically declare their acceptance of an adversarial DSP with respect to the CBD. Only
a few States have made such a declaration to date.243 The invocation of a DSP to enforce obligations under the Protocol is thus in most cases dependent on the consent of the envisaged defendant. In summary, even if it is assumed that the Protocol concerns only two-party relationships, various deficiencies of the traditional means of enforcement necessitate the establishment of a NCP under the Protocol. In addition, NCPs have been included in a number of recent MEAs that are solely concerned with the relations between two parties.244
In conclusion, it can be determined that the establishment of a NCP under the Protocol was a reasonable decision. If well designed, the established NCP can considerably enhance compliance with the Protocol’s provisions.
A detailed analysis of whether the NCP under the Protocol is, in this sense, well designed is however beyond the scope of this article. The following section will focus on a discussion of the responses that the NCP under the Protocol provides for in cases of non-compliance. It will first be determined whether the non-compliance response measures are of a soft managerial or a hard enforcement character. Thereafter, the attitudes of States, as expressed during the negotiation of the NCP with regard to the issue as to whether only soft or also hard enforcement measures should be applied, shall be examined. Finally, a personal evaluation will be made as to whether hard enforcement measures under the Protocol would be desirable.
4.5 Is the Non-Compliance Procedure under the Cartagena Protocol of a soft managerial or a hard enforcement Character?
The non-compliance response measures adopted under the Protocol are of a primarily soft managerial character. They comprise measures like financial and technical assistance, technology transfer, training, and other capacity-building measures. The Party concerned may be requested to elaborate a compliance action plan or may be invited to submit progress reports to the Committee. The only measures of a hard nature that the COP/MOP may decide upon are the issuance of cautions and the publication of cases of non-compliance in the Biosafety Clearing-House. The NCP under the Protocol does not provide for sanctions in the form of trade measures, economic punishments, and expulsion or suspension of rights and privileges of a non-complying party. Decision BS-
I/7 of the COP/MOP-1 only states that in cases of repeated non-compliance the possibility of further measures may be decided by the COP/MOP-3, and in the future, within the overall review process of the Protocol.
The question as to what measures should and could be taken in response to non-compliance was the most controversial issue during the negotiations of the NCP under the Protocol.245 While, with respect to the general nature of the compliance procedure, there was a broad consensus from the beginning of the negotiations that it should be advisory, facilitative, and non-confrontational,246 the EU in particular advocated strongly for the incorporation of the possibility of some form of sanction against persistently non-complying parties.247 Outspoken opposition came from LMO-exporting countries,248 among them, Australia and the US. However, as non-Parties to the Protocol,249 these States were not able to block the decision.250 Most of the developing countries also opposed the possibility of sanctions, as they were concerned they might not be able to comply and feared punitive measures.251 To avoid negative impacts on developing countries some States advocated a differentiated approach: punitive measures should be provided with respect to LMO-exporting Parties while only soft managerial measures should be applicable with regard to LMO-importing countries lacking capacity to comply.252
The disagreement of States regarding the provision of sanctions was finally, on the last day of the negotiations, resolved by adopting a compromise stating that in cases of repeated non-compliance the possibility of further measures may be decided by the COP/MOP-3, and in the future, within the overall review process of the Protocol.253
(a) Which sanctions were considered during the negotiations?
Several possible sanctions were considered during the negotiations. Financial penalties as economic sanctions were suggested by Ecuador but were not further discussed during the negotiations.254 In contrast, the possibility of suspension of “specific rights and privileges of the concerned Party under the Protocol” was highly contentious.255 During the negotiations the question was raised regarding which specific rights and privileges envisaged in the Protocol could be suspended.256 Australia considered that the only right and privilege under the Protocol which could be suspended was the right of access to technical assistance.257 Australia held that denial of access to technical support would be counterproductive to promoting compliance and thus rejected the possibility of suspension of rights and privileges as an enforcement measure under the Protocol. In response to the request of Australia and Canada to clarify and identify envisaged specific rights and privileges that may be suspended, the EU listed the following “examples and other measures which the Compliance Mechanism could adopt”:258
also address notifications referred to in Article 8 of the Protocol to the Compliance Committee, which will then be authorised to contact the Party of import concerned on behalf of the COP/MOP, and to require that Party to apply paragraph 6 of decision --/CMP.1 (decision-making under Article 10, paragraph 7, of the Protocol);
Apart from the first-mentioned point regarding the suspension of specific procedural rights, like the right to vote, nominate and elect, or be nominated and elected, the other suggestions made by the EU do not concern the suspension of treaty rights and privileges but can be regarded as further punitive measures, respectively trade sanctions.
Instead of a suspension of treaty rights and privileges as a response to non- compliance, the USA suggested two possible options:
Option 1: “In appropriate cases, take additional measures consistent with international law as reflected in Article 60 of the Vienna Con- vention on the Law of Treaties.”
Option 2: “May take, in cases of repeated or continued non-compliance, additional stronger measures, excluding trade-related measures within the framework of the Protocol and in accordance with international law.”259
However, it was not further explained which “additional stronger measures” could be adopted.
(b) Arguments of States rejecting the provision of sanctions
Those countries rejecting the adoption of sanctions as enforcement measures basically argued this point in three ways. Either they stated that sanctions are not allowed legally under the Protocol or that they are inappropriate or redundant.
During the negotiations, the US stated that Article 34 of the Protocol, calling for “cooperative” procedures and mechanisms, would be at odds with the imposition of sanctions.260 It was held that punitive measures exceeded the mandate of the Protocol, as the Parties of the Convention, in creating Article 34 of the Protocol, clearly meant the compliance regime to be facilitative in nature to assist Parties in implementing the Protocol.261
It was also argued that the provision of sanctions would be inappropriate. It was held that the adoption of sanctions would deter non-Parties from entering the regime.262 The effectiveness of the Protocol, however, would be dependent on the number and type of Parties to the regime, which should at least include the large majority of LMO-exporting and importing countries.263 It was stated that the provision of sanctions would particularly obstruct the participation of developing countries which feared their lack of capacity to comply.264
The US further argued that sanctions were redundant as Parties within the bilateral relations regulated by the Protocol might pursue dispute settlement under the procedures set forth in Article 27 of the CBD.265 Moreover, it was stated that Parties could take measures under customary international law as described in Article 60 of the VCLT.266 The possibility of a liability and redress mechanism under the Protocol was also argued to make any sanctions redundant.267
(c) Arguments of States advocating the provision of sanctions
The reasons why States advocated for sanctions as responses to non-compliance, and whether and how they responded to the arguments of their opponents, do not emanate from the documentation on the negotiations.
In the following section a personal evaluation of the discussion as to whether the adoption of sanctions is allowed and desirable under the Protocol is elaborated on before the question as to whether the COP/MOP-1 has made a wise decision regarding the response measures adopted under the Protocol is finally answered.
(a) Does the provision VI(d) of Decision BS-I/7 allow for the adoption of sanctions?
Provision VI(d) of Decision BS-I/7 of the COP/MOP-1 states that in cases of repeated non-compliance the possibility of further measures may be decided by the COP/MOP-3, and in the future, within the overall review process of the Protocol. The question arises as to whether the adoption of sanctions under this provision would be legally allowed. As illustrated above, it was held by the opponents of sanctions that the adoption of sanctions would exceed the mandate for the establishment of a NCP under the Protocol given by Article 34. However, the wording of Article 34 does not necessarily exclude the imposition of sanctions.268 It only provides that the “procedures and mechanisms shall include provisions to offer advice or assistance, where appropriate”.269 Thus, Article 34 of the Protocol does not prohibit the adoption of sanctions as additional measures.270
(b) Would strong enforcement procedures be desirable under the Protocol? Given the aforegoing, an appropriate ensuing question is whether the adoption of sanctions as responses to non-compliance as strong enforcement measures would be desirable under the Protocol?
The general discussion of the advantages and disadvantages of sanctions has shown that this question is difficult to answer. An ultimate solution cannot be given in this article. Rather, some key considerations will be highlighted. Apart from those sanctions mentioned during the negotiations, various other sanctions are conceivable under the Protocol. For example, a sanction in the form of a suspension of rights and privileges under the Protocol, not mentioned during the negotiations, would be the denial of access to the financial mechanism under Article 28 of the Protocol. A detailed examination of all possible sanctions cannot be undertaken in this paper but a few remarks shall be made.
First, as mentioned during the negotiations, the effectiveness of the denial of technical and financial assistance as an enforcement measure is doubtful. For example, the Montreal Protocol provides for the possibility to withhold funding for developing countries which do not comply with their obligation to report their baseline data within a certain period of time.271 Although in all cases of non-compliance with these reporting obligations the threat to cut funding
prompted the defaulting countries almost immediately to supply the required data272 and proved thus effective at first glance, devastating consequences might have arisen if the defaulting countries had not obeyed and supplied their data, with the result that funding was actually cut. Without financial support many developing countries cannot comply with substantive treaty provisions. If financial or technical support is denied as a consequence of non-compliance with procedural obligations, this may lead to an inability to comply with substantive provisions and may worsen the situation. Moreover, as the denial of technical and financial assistance can only be employed against developing countries it comprises an element of disparity. Therefore, the suspension of access to financial and technical support should not be adopted as a sanction under the Protocol.
Some of the sanctions noted above that the EU suggested during the nego- tiations need further explanation. For example, with respect to the second suggestion regarding violations of Article 8 of the Protocol, it should be elucidated as to how a Party could satisfactorily demonstrate that it will comply with Article 8 in the future. The exact description of a possible measure is important with respect to all sanctions so as to ensure legal certainty.
It is stated in academic literature that the possibility of trade restrictions as punitive measures should be provided in cases of violations of Article 24 of the Protocol.273 Unlike the Montreal Protocol and the Basel Convention, the Cartagena Protocol does not prohibit trade with non-Parties, but permits bilateral agreements between Parties and non-Parties, if they are consistent with the objectives of the Protocol.274 It is advocated that trade restrictions should be provided to ensure this consistency.275 Indeed, the possibility of such trade measures might ensure that obligations imposed by the Protocol are not evaded by Parties trading with non-Parties. The economic advantages non- Parties might have would effectively be minimised if the employment of trade sanctions proved possible in cases of violations of Article 24 of the Protocol. These sanctions would also act as an incentive for non-Parties to become Parties to the Protocol. Finally, it can be noted that sanctions employed against non- Parties do not usually provoke adverse effects on the relations between the Parties to the treaty.276
The provision of sanctions as enforcement measures under the Protocol is highly promoted in legal literature.277 However, apart from the above-mentioned claim for trade sanctions with respect to non-Parties, no explanation is
forthcoming as to which measures should be taken and why sanctions under the Protocol would be desirable. As has been illustrated above, sanctions in general may be advantageous but may also bring about considerable objections.
It was argued during the negotiations that the adoption of sanctions would deter non-Parties from entering the regime.278 Indeed, this danger is undeniable. It is of particular concern as most of the key LMO-exporting countries have either not ratified the Protocol yet,279 or have not even signed it.280 However, as a counter-consideration, it must be noted that the provision of sanctions may not only act as a deterrent for LMO-exporting countries, but may also secure the smooth functioning of the regime and thus limit the economic losses of Parties of export. For example, sanctions could ensure that countries of import communicate a decision regarding the permission of the intended transboundary movement, as they are obliged to according to Articles 10 and 15 of the Protocol. This communication is important to the Party of export, as according to Article 10(5) of the Protocol, a failure by the Party of import to communicate its decision within a certain period of time shall not imply its consent to an intentional transboundary movement.
In objection to sanctions it was also stated during the negotiations of the NCP that their incorporation would obstruct the participation of developing countries that feared a lack of capacity to comply.281 This objection can be overcome if the NCP explicitly clarifies that sanctions shall only be applied in cases of wilful disobedience and not in cases caused by a lack of capacity.
If sanctions were actually adopted, some design issues should be con- sidered, most of which have already been illustrated above. Firstly, it should be clarified which measures could be employed in specific cases of non- compliance. Moreover, sanctions should not necessitate a decision by the COP/MOP, but should be applied automatically or decided by the Compliance Committee in order to minimise adverse effects on State relations and avoid any impartial application against weak countries only. The possibility of an appeal against employed sanctions should be included, as provided for in the Kyoto Protocol.282 Finally, the design of sanctions under the Protocol should consider the “principle of proportionality”, which was illustrated above. In this respect, it must be ensured that economic sanctions do not collide with WTO provisions
in particular. The provision of sanctions is not appropriate with respect to commitments that leave a wide scope for interpretation and implementation to the discretion of the individual parties, as is the case with Article 16 of the Protocol, for example.
On the whole, the question as to whether sanctions should be employed under the Protocol cannot be answered categorically by this article. It involves complex considerations, some of which have been highlighted in this article. A survey of the implementation of the Protocol over a certain period of time could lead to further clarification. It could determine whether wilful disobedience is actually a significant cause of non-compliance under the Protocol. If this proves to be the case, the incorporation of sanctions may well be appropriate.
(c) Did the COP/MOP-1 make a wise decision regarding the adoption of responses to non-compliance?
The final question to be answered is whether the COP/MOP-1 made a wise decision regarding the adoption of responses to non-compliance? In this respect, it is clear that the COP/MOP-1 made a wise decision regarding the provision of cooperative and facilitative measures under the Protocol. The implementation of the Protocol, which constitutes a detailed advanced informed agreement procedure for the transboundary movement of LMOs, will be a consider- able challenge for many Parties. Developing countries, in particular, will be dependent on the capacity-building measures provided for in the NCP. With regard to the adoption of sanctions, it is stated in academic literature that the Parties failed to reach a decision.283 Indeed, the Parties did not decide on the adoption of sanctions, nor did they ultimately reject their adoption. Rather, they reached a compromise by stating that in cases of repeated non-compliance the possibility of further measures may be decided by the COP/MOP-3, and in the future, within the overall review process of the Protocol. As the above illustration has shown, the question as to whether sanctions should be adopted is very difficult to answer. The concluded compromise allows time for a survey of the actual causes of non-compliance under the Protocol. Thus, instead of assuming that the Parties failed to reach a decision, it could be stated that the Parties adopted a reasonable compromise.
5. CONCLUsION
The question raised in the subtitle of this article as to whether the creation of the NCP under the Cartagena Protocol was a “wise decision for a soft approach”, cannot be answered definitively or with any ease. In general, it
can be determined that the establishment of a NCP in an MEA, as a “softer” approach to addressing non-compliance than that provided for by traditional adversarial DSPs, may effectively enhance compliance. NCPs facilitate dispute avoidance and multilateral alternative dispute resolution without the need to resort to external adjudication or institutions. A well-designed NCP may avoid the deficiencies inherent in traditional enforcement measures.
One important design issue with respect to NCPs is the selection of response measures to non-compliance. In this respect, the question needs to be posed as to whether NCPs under MEAs should only provide “soft” managerial or should include “hard” enforcement measures also. A generalised answer to this question cannot be given. Rather, the selection of measures depends on the needs of the specific treaty regime. However, it is clear that sanctions should only be provided for and employed under certain restrictive conditions.
With regard to the NCP established under the Cartagena Protocol, one can conclude that the creation of a NCP under the Protocol was reasonable in general. It is difficult to answer, however, the question as to whether the provision of hard enforcement measures in the form of sanctions would be desirable under the Protocol, which currently employs only a soft managerial approach. In this respect, a survey of the implementation of the Protocol over a certain period of time could lead to some clarification. Thus, the decision of the COP/MOP-1 that further measures may be decided on within the future review process could be evaluated as a wise decision.
On the whole, it can be assumed that the NCP under the Protocol is still in the process of development. Within the future review process the incorporation of sanctions in the NCP should be considered, and in addition, other features of the NCP (which could not be analysed in this article) should be reassessed. Currently, the NCP under the Cartagena Protocol does not contain any unique features but the Parties to the Protocol could consider more innovative forms of participation – for example, with respect to the involvement of NGOs.284 What is clear is that any future decision of the COP/MOP-1 on compliance measures should not be guided by considerations of State sovereignty, but by the overarching objective of the Protocol to effectively protect biodiversity and human health from the potential risks of modern biotechnology.
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