Procedural Aspects of the International Legal Regime for Climate Change: Early Operation of the Kyoto Protocol's Compliance System
| Author | Osamu Yoshida |
| Position | Associate Professor of Public International Law and Organizations at the University of Tsukuba |
| Pages | 41-61 |
Procedural Aspects of the
International Legal Regime
for Climate Change: Early
Operation of the Kyoto
Protocols Compliance
System
Osamu Yoshida
This paper examines the early operation of the Kyoto Protocol
s non-compliance
procedure since 2006. Several important non-compliance cases recently or currently
before the Kyoto Compliance Committee of the procedures and mechanisms deserve
to be analysed and discussed. As we may see, the enforcement branch of the
Compliance Committee has dealt with some important cases of non-compliance;
Among them, from the viewpoint of interpretation or application of international
environmental treaties, the question of compliance by Croatia would be particularly
interesting. What must be noticed is that the Kyoto Protocol
s NCP has prepared a
multilateral forum which enables both the parties and the enforcement branch to base
their arguments on international legal perspectives. This examination will also
contribute to contested theories of compliance with international legal rules.
Keywords
Kyoto Protocol, Non-compliance Procedures, Compliance Mechanisms,
Global Climate Change
KFBJM2)3122* 41
* Associate Professor of Public International Law and Organizations at the University of Tsukuba. Dr.Phil.
(Edinburgh). Visiting Fellow, Institute of International Law and International Relations, Vienna University (2003-4).
At present he serves as a Member of the I.L.A. Committee on the Legal Principles relating to Climate Change. The
author may be contacted at: yoshida@social.tsukuba.ac.jp/Address: Graduate School of Humanities and Social
Sciences, University of Tsukuba, 1-1-1 Tennodai, Tsukuba 305-8573, Japan.
I. Introduction
One of the conspicuous characteristics of international environmental law is the
development of so-called non-compliance procedures(NCPs). It is contained in the
procedural aspect of many recent sectoralenvironmental regimes.
1
In this respect,
noticeable at the outset is the adoption of the non-compliance procedure in 1990 under
the Montreal Protocol on the Substances that Deplete the Ozone Layer of 1987.
2
Non-
compliance with or non-performance of the ozone treaty obligations affects the
international community as a whole rather than being geographically limited to
particular sovereign states or even individuals under statesjurisdiction. Thus, ozone
disputesare totally different from environmental disputes concerning transboundary
air pollution or the conservation of living or non-living natural resources. It can easily be
assumed that traditional methods of procedures for dispute settlement, such as those
envisaged in Article 33 of the United Nations Charter would not necessarily be
preferred approaches in this context.
3
As G nther Handl notes, what is required here is
regime-specific legal compliance mechanismsof a more innovative nature.
4
The Montreal-type NCP may be triggered by one party against another, a party itself
which is in non-compliance, and the Ozone Secretariat of the United Nations
Environment Programme (UNEP). The newly established Implementation
Committee as the legitimate first stop
5
in any formal discussion has examined and
decided most non-compliance issues. Yet, the role and capability of the Committee is
1
See generally
P
ATRICIA
B
IRNIE,
A
LAN
B
OYLE
& C
ATHERINE
R
EDGWELL,
I
NTERNATIONAL
L
AW AND THE
E
NVIRONMENT
245-50
(3d ed. 2009); P
HILIPPE
S
ANDS,
P
RINCIPLES OF
I
NTERNATIONAL
E
NVIRONMENTAL
L
AW
205-10 (2d. ed. 2003); Gerhard
Loibl,
International Environmental Agreements - Compliance Mechanisms and Procedures at the Crossroads?,in
T
HE
L
AW OF
I
NTERNATIONAL
R
ELATIONS
: L
IBER
A
MICORUM
H
ANSPETER
N
EUHOLD
191 (August Reinisch & Ursula
Kriebaum eds., 2007); M. A. Fitzmaurice & C. Redgwell,
Environmental Non-Compliance Procedures and
International Law,
31 N
ETH
. Y.B. I
NT
L
L. 35 (2000); Jan Klabbers,
Compliance Procedures, in
T
HE
O
XFORD
H
ANDBOOK OF
I
NTERNATIONAL
E
NVIRONMENTAL
L
AW
995 (Daniel Bodansky et al. eds., 2007); Malgosia Fitzmaurice,
Environmental Compliance Control, in
E
NCYCLOPEDIA OF
P
UB.
I
NT
L
L. (R diger Wolfrum ed., 2010),
available at
http://www.mpepil.com (last visited on Mar. 4, 2011).
2On the NCP of the Montreal Protocol,
see generally
Osamu Yoshida,
Soft Enforcement of Treaties: The Montreal
Protocols Noncompliance Procedure and the Functions of Internal International Institutions
, 10 C
OLO
. J. I
NT
L
E
NVTL
. L. & P
OL
Y
95 (1999); G
ILBERT
M. B
ANKOBEZA,
O
ZONE
P
ROTECTION
: T
HE
I
NTERNATIONAL
R
EGIME
ch. V (2005).
The text of the Protocol is
reprinted in
26 I.L.M. 1550 (1987).
3O
SAMU
Y
OSHIDA,
T
HE
I
NTERNATIONAL
L
EGAL
R
GIME FOR THE
P
ROTECTION OF THE
S
TRATOSPHERIC
O
ZONE
L
AYER
:
I
NTERNATIONAL
L
AW,
I
NTERNATIONAL
R
GIMES AND
S
USTAINABLE
D
EVELOPMENT
173-6 (2001).
4G nther Handl,
Controlling Implementation of and Compliance with International Environmental Commitments,
5
C
OLO
. J. I
NT
L
E
NVTL
. L. & P
OL
Y 305, 327 (1999).
5D
AVID
G. V
ICTOR
, T
HE
E
ARLY
O
PERATION AND
E
FFECTIVENESS OF THE
M
ONTREAL
P
ROTOCOL
S
N
ON
-C
OMPLIANCE
P
ROCEDURE
36 (1996).
u
..
E
'
E
'
u
..
42
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