Keywords

1 Introduction

In the recent term, it is seen that the explosion of institutions, agreements and actors in environmental issues has led to a great number of growing challenges that should be resolved to deal with environmental problems.

Of those challenges, the need to strengthen ‘compliance’ has been precisely stressed in Agenda 21 as a response to effective governance of environmental problems. The UNEP Special Session of the Governing Council (GC) held in 2000 also recognizes the central significance of compliance, enforcement and liability besides capacity building. UNEP, particularly with the adoption of the ‘Programme For the Development and Periodic Review of Environmental Law For the First Decade of the 21st Century (Montivideo III Programme)’ in 2001, also starts to take ‘compliance issue’ as a core concern, stressing the ineffectiveness of environmental law.

In addition, in the World Summit on Sustainable Development (WSSD) held in 2002, the need of promoting compliance and so the establishment and operation of mechanisms that can improve and maintain compliance has emerged as a core theme of GEG.

Very recently, in the Rio+20 UN Conference, held in Rio de Janeiro, Brazil, from 20 to 22 June 2012, compliance issue is not specifically emphasized, but, through the Conference’s nonbinding document, ‘The Future We Want,’ it is also reaffirmed that, the means of implementation identified in Agenda 21, the Programme for the Further Implementation of Agenda 21, the Johannesburg Plan of Implementation are quite necessary for transforming commitments into tangible sustainable development outcomes.

Thus, ‘compliance issue’ has turned out to be one of the major concerns in both IEL and IEP in current decades. Indeed, it has been recently realized that, it is not sufficient to adopt legally binding commitments on environmental issues for success in coping with environmental problems, but more important thing is to ensure high level of compliance of the parties with their commitments under MEAs. This is remarkable because, the lack of compliance can result in failure to deal with the environmental problems, such as global warming.

This paper so aims to discuss the potential role of ensuring compliance to struggle against the challenges of global warming. While doing that, it assumes that coping with the problems of global warming can be achieved to some extent by providing and increasing compliance of the parties with their commitments under MEAs.

In this respect, for making a detailed examination on the ways of ensuring compliance under two dimensions: traditional and new means, first it studies on the traditional means and their limitations in ensuring compliance. Second, it focuses on the basic features of the new means—CMs—making them more preferable to invoke in the eyes of the MEAs’ parties. Third, it scrutinizes their three main components, namely,—gathering information, procedures/institutional structure and responses—on the basis of their potential weaknesses undermining the efforts to ensure compliance giving examples from CMs under Montreal Protocol and under Kyoto Protocol. Both Protocols, Kyoto and Montreal, have been used here to give examples. This is because, each Protocol copes with atmospheric problems,—aiming to stabilize “greenhouse gas concentrations in the atmosphere” (art.2, UNFCCC) and “to prevent depletion of the ozone layer (art.2.1, Vienna Convention),” and so, they play crucial roles in ensuring the compliance with the requirements on issues related to global warming. Finally, based on the findings, it is argued that, although the traditional means have important weaknesses in ensuring compliance of parties with their commitments under MEAs, these new means have also some weaknesses and so they require improvement for better compliance to handle with wide ranging environmental problems such as global warming.

2 The Limitations of Traditional Means

In recent decades, the limitations inherent in the traditional means of settling disputes and ensuring compliance, such as Law of Treaties , state responsibility and Dispute Settlement Procedures (DSPs), have begun to be questioned further and they begun to be found steadily more ill-equipped. All discussion on these limitations have raised the need for the creation of new mechanisms with features making CMs more attractive and preferable to be applied for. In fact, the insufficiency of traditional means and dissatisfaction with them has increasingly motivated the emergence and continuing growth of new mechanisms to address environmental concerns in the management of relations between the contracting parties of the MEAs and in the settlement of the present (and also probable) environmental problems between them [1–4].

It is not within the scope of this study to exhaustively deal with the various aspects of each of these traditional means, yet, merely to clarify their limitations. So, here, each limitations will be explained with its significant aspects very briefly.

2.1 Law of Treaties (LoT)

According to Vienna Convention on the Law of Treaties , art.60, para.2, if there has been a material breach of a multilateral agreement (for the definition on material breach, see paragraphs 3a and b) by one of the parties, the other parties unanimously can suspend its operation partially or fully, or can terminate it. To this, the party specially affected by the breach has also the same right for suspending it in whole or in part in the relations between itself and the defaulting state. Moreover, any party other than the defaulting state can use this right either, but only if the material breach seriously changes the position of every party with respect to the further performance of its obligations under the agreement.

Here, there are two main points that should be stressed expressing that the LoT does not render effective means to enhance compliance: First of all, it is generally not feasible to determine any one party specifically affected by a breach in MEAs. Second, to suspend the agreement is not accepted as a good way of responding to the non-compliance in both intentional and unintentional compliance. This is because, by this way, it is rather unlikely to bring back the non-compliant party to compliance. To illustrate, if there is an unintentional compliance, that is, if the breaching state is generally willing to comply with the provisions of the agreement, but it is unable to comply because of its incapacity, compliance can not be provided by the suspension of the agreement [5].

On the other hand, if the state in question does not already want to comply with the agreement, compliance can not be elicited again by withdrawing it from the agreement. Remarkably, MEAs mainly aim to address environmental problems including global significance and common interest, to take the non-compliant part out of the obligations of the agreement undermine seriously this aim. So, it should be argued that, when MEAs are concerned, the application of this measure raises as a “contrary to the objective pursued” [6] in the MEAs of which basic target is “global membership” [7]. In addition, excluding the party from the agreement prevent its supervision in environmental matters covered by the MEA and can result in worse environmental situation in the related party. So, while punishing the non-compliant party by expulsion, it can in effect punish all the parties, perhaps all world community, as the environmental effects more often go beyond borders.

2.2 Responsibility of States

According to the International Law Commission (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001, all acts or omissions of a state in breach of an international obligation which are attributable to the state under international law (art.2), entail the international responsibility of that state (art.1). However, in general, state responsibility (also liability ) is also viewed as inappropriate for inducing compliance with MEA obligations protecting the global commons [8–13].

This is first due to the difficulty in identifying a casual relationship between the state injured by violation of an MEA obligation and the state that has caused the damage particularly in case of transboundary environmental damages [9, 10, 12, 14, 15].   Second, it is also difficult to identify reparation involving restitution, compensation, and satisfaction (arts.34–37) which is determined as the legal consequences of the responsibility for environmental damage. Third, it is nearly impossible to apply them for irreversible-irreparable environmental damages [12]. Fourth, there is no institutional mechanism designed for specifically addressing compliance problems in the context of the state responsibility [16]. In addition, the states usually are reluctant to bring their claims about the others’ responsibility. In fact, the Chernobyl and Sandoz accidents which resulted in huge transboundary pollution were not brought before judicial mechanisms by the victim states. So, the Trail Smelter case between the US and Canada has remained “the only case where a state has been found legally responsible for failure to prevent transboundary pollution” [17]. Finally, state responsibility covers only the states’ activities as the responsible of the environmental damages, yet, does not cover the private activities. The development of civil liability regimes, “recognis[ing]the reality that most environmental problems are caused by private conduct rather than state activities,” [16] can be shown as a cure to this challenge. Nevertheless, experience with existing civil liability regimes also express the inappropriateness of these regimes for environmental issues involving transboundary concerns, due to the fact that they restrict “such regimes to the relationship between an offender and the one whose rights have been infringed” [18].

2.3 Dispute Settlement Procedures (DSPs)

MEAs include provisions for settling disputes. Like provisions relating to compliance mechanisms , those relating to dispute settlement systems differ according to different MEAs as well. However, on the basis of Rio Declaration and the UN Charter,-Principle 26 of the 1992 Rio Declaration clearly sets out that states have to “resolve all their environmental disputes peacefully and by appropriate means in accordance with the Charter of the United Nations .” Art.33(1) of the UN Charter states that the settlement of disputes can be provided “by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice”- it is possible to scrutinize DSPs generally in two groups: 1. diplomatic means , such as negotiation, good offices, inquiry, mediation, conciliation, and 2. “judicial” [19] (or “legal” [20] or “adjudicative” [21]) means, such as arbitration and judicial settlement. Even though all these means available for ensuring compliance and resolving disputes have considerably improved over time, it is still controversial whether they are well equipped to deal with the environmental issues, due to the problems inherited within them such as 1. disharmonic dispute settlement clauses, 2. fragmentation and cluster litigation, 3. competing and parallel legal regimes, 4. multiplication of actors and levels [22].

Of these different means, in practice, it is generally observed that diplomatic ones are further revoked than judicial means and further supported by MEAs. This is particularly because, they are more flexible and cooperative, as most of it are based on the consensus of the parties. Yet, they can be ineffective in practice, because of having no compulsory nature [23].

Judicial ones (arbitration/judicial settlement), on the other hand, are usually found inadequate in the field of environmental law in general, and in MEAs specifically.

DSPs’ judicial means , like diplomatic means , are also rarely used in practice either [23]. Even Stephens [16] arguing the “flourish of international environmental litigation,” accepts that he makes this evaluation taking an expansive definition involving all disputes including at least one issue of environmental protection.

The reasons behind this fact can be summarized at follows:

  1. 1.

    To challenge another state by taking it before a court is often regarded as an “unfriendly act” [24] and states usually do not want to damage their relationships by initiating court proceedings against other states [7].

  2. 2.

    Their proceedings are regarded as costly, slow and troublesome [25]. The absence of an enforcement and monitoring mechanism which can provide the implementation and compliance of their decisions also restricts the influence of judicial decisions.

  3. 3.

    Judicial decisions do not prevent the damage before it occurs, but, use measures such as restoration of the previous situation or compensation after it occurs. Given the irreversible character of environmental damages, they do not meet the needs of environmental protection. DSPs of MEAs mostly include judicial means that do not refer to compulsory-binding mechanisms—“exception: ITLOS and the Fish Stocks Agreement ”—[26].

It can be argued that, what is needed here is the establishment of an International Environmental Court (IEC) [27, 28]  with mandatory jurisdiction, as existing international courts cannot offer an “optimum solution” for environmental problems [28] and cannot guarantee the rights of non-state entities on environment [21, 28].  However, there are also strong arguments showing that, the establishment of a separate IEC can not be the best option, and result in some other problems [29]. So, the establishment of an International Environmental Court (IEC) also remains still as a controversial issue and requires to be further discussed.

In sum, DSPs (particularly judicial remedies) are usually “confined to the facts of a specific dispute,” [they] cannot deal with the whole or part of a broader environmental problem” [30]. In addition, they are confrontational and adversarial and are designed for bilateral disputes (in particular, judicial means , but, diplomatic means either). Yet, environmental problems are often multilateral in nature. So, in case of violation of an obligation, it is hard to define two sides of the dispute. Remarkably, if the violation does not stem from deliberate non-compliance, but rather lack of inability or incapacity, to address non-compliance through DSPs (particularly through judicial means) becomes also more problematic, and this situation better explains why CMs are more preferred than DSPs in MEAs.

3 The Features Making CMs More Attractive

Table 1 Differences between DSPs and CMs
Full size table

The features all above mentioned have raised the need for the creation of new mechanisms with features which can cope with these limitations/at least reduce them. They expose also the distinct characteristics between the CMs (particularly the Non-Compliance Procedures (NCPs) in these mechanisms) and DSPs in many aspects (see Table 1). They can be briefly summarized in the followings:

  1. 1.

    Main purpose: The CMs’ main purpose is to identify why non-compliance has occurred and what parties’ compliance difficulties are, to suggest ways and means by which the non-compliant parties can satisfy their commitments, re-establish and facilitate better compliance.

  2. 2.

    Main approach: The CMs are based on preventive approach aiming to determine the possible non-compliance and to prevent it before the damage has occured through cooperation between parties [3, 31].

  3. 3.

    Type of paradigm: The instruments-procedures used in the CMs are not based on the traditional paradigm of bilateralism, building on the bilateral relationship between the non-compliant party and the directly injured party.

  4. 4.

    Terminology: Commitments of the parties to MEAs (rather than obligations), non-compliance/compliance (rather than breach/violation) consequences/response measures (rather than penalties/sanctions/penalties) are the terms which are prefered to be used in CMs.

  5. 5.

    Basis for their application: The existence of a party’s failure to comply with the obligations set out in the MEA or of potential non-compliance is enough to commence the NCPs of the CMs, breach and direct damage is not necessary.

  6. 6.

    Initiation of the mechanism: Each party (even the non-compliant itself), even not suffered, can initiate the CM. It is not necessary to direct to it any party. So, CMs are admitted as non-confrontational and non-adversarial mechanisms [32].

  7. 7.

    Institutional Structure: CMs are not judicial mechanisms in general [3, 33] so, they function as “part of the political institutions” [34] and “on the basis of more pragmatic rather than legal considerations” [33]. However, two CMs can be defined as quasi-judicial with their features similar to judicial procedures. One of them is the CM under International Treaty on Plant Genetic Resources (ITPGRFA) (art.21) which offers “a gradual formalization or judicialization of the non-compliance procedure ” [31]. The other one is the CM under the KP , with its provisions on the admissibility of complaints (art.VII), procedural guarantees (art.VIII), the possibility of appeal (art.XI), possible consequences of non-compliance (art.XV) and with its enforcement branch (EB).

  8. 8.

    Decision-making: In principle, political body(for example: meeting of the parties) has been entitled to give decisions on compliance issues. But, in some cases , quasi-judicial body, such as Enforcement Branch functioning under the CM of the KP, makes decisions on any issue in question within the mechanism.

  9. 9.

    Consequences: Flexible approach is dominantly employed, allowing to apply one or more response measures (positive or negative) among a variety of consequences. Their response measures basically aim to facilitate rather than enforcing the parties in line with their objectives.

In order to make the differences between DSPs and CMs more under stable and visible, they were also revealed in a summary Table 1 above.

To conclude, these features of CMs, making the states more willingful to use them rather than using DSPs, have raised the CMs as more appropriate ways of settling disputes and ensuring compliance. In fact, it has been observed that, in the recent term, states have often preferred to resolve the environmental matters “in-house, and more informally” through CMs, instead of resorting to traditional means [35].

4 The Potential Weaknesses of Compliance Mechanisms

4.1 Gathering Information on the Parties’ Performance

Under most of the MEAs, information is usually gathered through self-reporting system. The first challenge about reporting is this self-reporting problem which raises as a challenge under most MEAs.

In self-reporting method , the states can review their performance through a self-assessment procedure without the interference of the other parties. This method can result with a “vaguely formulated” [7] information, and “underreporting” [36]. This is because, states avoid condemnation and wants to maintain their good reputation, and this makes the reports’ objectivity and reliability questionable.

In addition, reporting can be incomplete or insufficient, since the methods used by parties in collecting data are not known well. In fact, different criteria used by different parties for reporting makes difficult gathering objective and qualitative information, and so makes harder “any meaningful discussion” on the information reported and “assessment of the reports at the next procedural level” [37].

These all make data collection and reporting burdensome for the parties, particularly for developing country parties, due to their lack of capacity to provide sufficient technical, financial and human resources, although there is an important way of forcing them to give further information and to fullfil their data-reporting requirements. The complexity of the reporting criteria and procedures and lack of necessary capacity building triggers late reporting among the parties.

The other problem in the CMs regarding reporting is the lack of third party monitoring and verification .

Discussing the gathered information with the public and rendering Non-governmental Organization (NGO) participation are also very important in the reporting process, as they can decrease the question marks in the minds on the objective nature of the information in the reports. They can be involved into the phases of the reporting of the parties or reports prepared by the related organs of the MEAs. Their participation to the reporting of the parties depend generally on the attitude of the party towards NGO participation (e.g. Montreal Protocol). If it accepts, NGOs can participate to their preparation or can give their findings or critics to the party.

In the stage of preparation of summary reports by the related organs (generally secretariats), it depends on the authority given by the MEA to the secretariat . If it has entitled to employ additional sources of information provided by the NGOs in the report, it can do it. Otherwise, it can not. So, the secretariats in some MEAs can decide to launch the NCP on the basis of information gathered from other NGOs . Thus, NGOs can support monitoring through providing information to these organs. Yet, the main control in general is held by the organs of the MEA, the right to vote is not given to the NGOs [1].

Given the fact that more transparency, ensuring more openness in gathering and assessing of the information within the reports has the potential to increase the public’s pressure, improving the NGO participation both to the stage of the reporting of the parties and the stage of preparation of summary reports by the secretariats should be considered as one of the main principals of the system.

Because of the problems mentioned above, reporting procedures under MEAs require more comprehensive and effective operation in order to ensure “accurate, up-to-date, complete, transparent and comparable” [25] information provided by states.

4.2 Non-compliance Procedure (NCP)

4.2.1 The Impartiality and Independency of the Committee

An ImplCom generally consists of parties elected by the MOP (e.g. Montreal Protocol NCP, para.5). This is questionable as experts serving in their personal capacity as members of the Committee are expected to be more independent than representatives of the parties.

Additionally in terms of requirements on parties’ representatives, there are no criteria in the NCP, Montreal Protocol. This is most possibly because, the dominant view among the parties is that each party should have the right to decide on the background of its representative. However, it would be better to have greater expertise from different areas, because an ImplCom composed only of lawyers, or only of scientists or technicians, or of diplomats and policy experts can have difficulties to deal with cases involving the matters of areas other than their expert areas [38].

Under the KP , for example, there are crucial provisions supporting the independency and impartiality of the Committee. To illustrate, the membership of a member or alternate can be suspended or revoked if he is found to have materially violated the independency and impartiality of the Compliance Committee (ComplCom) (Kyoto Protocol Rule of Procedures (RoP), 4. In addition, for the Enforement Branch (EB), members should have also legal experience (NCP, Sect. 5(3)) and should serve in their personal capacities (NCP, Sect. 2(6); RoP, 4). Here, it should be also noted that, like the use of outside technical experts, it may also be considered to apply the use of outside legal experts, if legal disagreements continue to arise within the EB [39]. On serving in their personal capacities, the issues like the reimbursement of the costs of travelling and subsistence and the enjoyment of privileges and immunities, can be thought as problematic issues which can affect the independency of the Committee’s members while deciding on matters [40]. Under the KP, even though the Committee has repeatedly requested the MOP to provide funding for the regular participation of all members (ComplCom 2, 2007: para.5; ComplCom 3, 2008:4f; ComplCom 4, 2009: para.4c) [41–43], presently, only members and alternates from developing countries and from some low-income countries with economies in transition can utilize from reimbursement of the secretariat for their travel and subsistence expenses [44]. This negatively affects the regular attandance of the members to the meetings.

4.2.2 Procedural Safeguards

Despite having the opportunities granted by the NCP of the Montreal Protocol (MP) , when it is compared with NCP of the KP , it is found out that, the KP’s NCP generally has more detailed rules on the procedural structure and necessary procedural safeguards in the process of related proceedings through its NCP adopted by Decision 24/Conference of the Parties(COP) 7, but also through its RoP prepared for the working of ComplCom by Decision 27/Meeting of the Parties(MOP) 1.

4.2.3 The Rights of the Party Concerned

To illustrate, as different from KP ’s NCP, in the Montreal Protocol’s NCP, it is not possible to find provisions concerning the rights of the party in question to access to any information considered by the Implementation Committee (ImplCom), and any information upon which recommendations are given by the ImplCom or decisions made by the MOP, to comment on such information and on any recommendation of the ImplCom or decision of the MOP, or to have the opportunity to present its views or expert testimony.

4.2.4 Predetermined Timetables

The mechanism under the Montreal Protocol includes strict timelines for different processes of the proceedings. However, contrary to the KP ’s NCP, they are not so much in number and not providing a clearly defined timetable for each step in the proceedings of the ImplCom regarding compliance evaluation.

Another important difference is the expedited procedure incorporated to the KP ’s NCP (NCP, Sect. 10), for questions of implementation relating to eligibility requirements under articles 6, 12 and 17 of the Protocol, both for proceedings to suspend eligibility and proceedings to have eligibility reinstated. There is no this kind of procedure in the NCP of the Montreal Protocol .

Therefore, it can be argued that the NCP, KP , through its “strict timelines” and the expedited procedure, has more potential to prevent time consuming [45].

4.2.5 Fixed Consequences

The Montreal Protocol includes an indicative list of measures for compliance built into the Protocol in the form of positive measures (such as financial and technical assistance) and negative measures (like suspension of some rights), yet, no list of possible situations of non-compliance, as different from the CM of the KP including a system of predefined non-compliance situations with predefined responses. So, it may be proposed to adopt a similar system for the MP system as well, but, the issue even for the KP system is still controversial.

4.2.6 Transparency

Regarding the weak side of the KP’s NCP on transparency, NCP Sect. 8(6), KP should be stressed here, as it allows information to be kept away from the public until the conclusion of the proceedings on request of the party being investigated and at the discretion of the EB. However, this has not been used till to date, and both the ComplCom and two branches “have made considerable efforts toward transparency ” [39]. Yet as Doelle attracts attention, there are still basicly three limitations of the CM under the KP regarding transparency issue: 1. Working documents 2. Electronic means of communication that are not publicly access, but, can be public there is a reason to keep them confidential 3. more detailed annual reports and decisions of the committee and its branches that can fill the gaps stemming from the inaccessibility of working documents and e-mails [39].

The NCP, Montreal Protocol , paragraph 16, on the other hand, opens the way of making the ImplCom’s reports available to anyone upon request, thus providing its publicity, and also the way of making all information exchanged by or with the ImplCom related to its any recommendation to the MOP to any party upon its request. However, while allowing this kind of openness, the NCP also restricts this opportunity with the reports not containing any confidential information, and with the obligation to protect the confidentiality of information that the part has received in confidence (NCP, pragraph 16). Moreover, it obliges the members of the ImplCom and the parties involved in its deliberations to ensure the confidentiality of information they receive in confidence (NCP, pragraph 15).

Here, the questions can be raised about determining whether information is confidential or not, and the possible results of not meeting with these rules of the NCP. As it is not so detailed in the NCP, there are no specific rules on who decides whether information is confidential or not, or what will be if the members of the ImplCom or parties do not protect the confidentiality of the information [46].

Regarding this issue, Chasek, Downie and Brown [47] suggests establishing mechanisms by which secretariats or COPs would publicly consider complaints brought by states, International Organizations (IOs), NGOs , or other actors about non-compliance by a particular party.

4.2.7 Possibility for Appeal

Within the NCP of the KP , as a rule, there is no opportunity to appeal against decisions of the branches of the ComplCom. However, as an exception, it is possible for the parties to appeal to the MOP against final decisions of the EB relating to emissions targets (art.3(1), KP) about whether the rules of the due process are applied to the party concerned (NCP, Sect. 11,1). However, the appeal does not suspend the EB’s decision, and the MOP can not give a final decision on the question of implementation (QoI), instead, it should refer the QoI back to the EB.

Within the NCP of the Montreal Protocol , even this kind of appeal opportunity is not possible. This is particulary because, if it is possible, it would be against decisions of the MOP, as different from the appeal applied in the KP ’s NCP. Therefore, “no support was expressed for creating such a mechanism, although some experts expressed the view that, while the proposal was premature, it should not be discarded out of hand” (Ad Hoc Working Group, 1998:10, paragraph 57) [48].

4.2.8 Strengthening the Role of NGOs in CMs

Strengthening the role of NGOs in CMs would result in many positive effects for better compliance and also governance-for a further discussion on the need for a stronger involvement of NGOs and strengthening their roles in the CMs process, (see Epiney [49], and see also Fodella [50] for the debate on the difficulty of NGOs in being truly objective pursuing the interests of the collectivity, not actors’ interests and agendas, and the problem of providing their independency). In fact, their participation to the process can promote compliance due to their experiences, expertise and capacity on environmental issues, especially in the fields of analyzing these issues, distribution of information, strengthening the transparency, and ensuring dialogue between the related parties, even if there have been no formal measures (particularly negative ones) [51].

Yet, in practice, it is observed that, even though NGOs have played active role in the negotiations of both Protocols and their amendments (and within most of other MEAs), their participation to the initiation of the process, to the reporting phase, to the proceedings and to the processes of monitoring compliance have been so limited.

In fact, depending on the provisions of the related MEA, NGOs can participate to the meetings of the MEA’s organs as observers (or “the status of “partner NGOs”” [39], but if there is no objection of the parties. Yet, in general, in the assessment stage of the reporting , their role is restricted further, as they usually can not attend to the meeting for assessing the report, if of any one party requests. If they are admitted to participate, they can not have the right of veto (e.g. Vienna Convention, art.6(5); Montreal Protocol art.11(5); RoP 7(2)).

The IGOs and NGOs are also not allowed to trigger the NCP, they can solely submit relevant factual and technical information to either branch of the ComplCom (NCP, Sect. 8, paragraph 4), although it is strongly advised that NGOs should have the “formalised possibility” to trigger a NCP by some scholars [49].

Doelle [39] suggests “a non-party trigger process,” that is, to allow civil society to trigger the process before the ComplCom. However, as a starting stage, he suggests to allow the branches to review the ERT reports, and trigger the process if they identify issues of concern within their jurisdiction. He underlines that, combined with a formal trigger competence, the Facilitative Branch (FB) could also be given the competence to carry out periodic automatic consultations with parties on their commitments without a triggering process.

Under the KP mechanism, they are merely allowed to submit relevant factual and technical information to either branch of the ComplCom (KP, NCP, Sect. 8, paragraph 4). Indeed, it is observed in practice that a number of environmental organizations struggle to monitor the compliance of the parties and share the information that they gathered by the public—see Andresen and Gulbrandsen [53] for details on environmental organizations’ contributions. In addition to environmental organizations, industrial companies can also have important role in providing necessary and relevant information to the system (for details see also Skjærseth [54]). These efforts, particularly the efforts of NGOs, can considerably contribute a more transparent mechanism which can lead to a larger mass, and thus, a larger participation of the public to the mechanism in direct or indirect ways.

In fact, like being in the KP , in the CM of the Montreal Protocol as well, there is no formal way of participation for NGOs to the ImplCom proceedings in which only the ImplCom members, the secretariat and parties involved in submissions can participate. There is only one way of providing their participation to the proceedings. This way allows the secretariat to notify any body to participate to the Protocol’s meetings. That is, likewise the secretariat can notify the UN and its specialized agencies, the International Atomic Energy Agency (IAEA), and any state not party to the Protocol to provide their participation to its meeting (RoP, 7), it can also notify any body or agency, whether national or international, governmental or non-governmental, qualified in fields relating to the protection of the ozone layer (RoP, 7). If there is no objection from the parties present to their participation, such bodies can participate as ‘observers’ to the proceedings of any meeting, so without having the right to vote (RoP, 6, 7).

This situation specifically stems from “confidentially problems posed by the sensitive technical and commercially valuable information that the Committee has to handle” [55]. Yet, on the other hand, the balance between providing confidentiality and legitimacy should not be lost while considering on issues of non-compliance in that kind of structure [55].

In the processes of monitoring compliance, the reasons lying under their limited role can be explained with their inadequate resources (money, staff, scientific capacity, institutional structure, etc.). In addition, data needed to monitor compliance of the parties can be “classified as a trade secret in many states which hinders monitoring efforts” [56]—OzonAction should also be mentioned here, as through OzonAction, the Montreal Protocol also supports compliance through providing the assistance of the industry for gaining information on industrial substitutes for regulated chemicals and also for providing a forum for the countries concerned with implementing the treaty-so, due to “the high cost of maintaining large-scale permanent monitoring networks” [57], NGOs ’ participation to the activities of monitoring remains at low levels, as restricted to only some areas of monitoring.

4.2.9 Financial Challenges

In CMs, financial resources are generally provided from the general budget prepared and adopted by the COP/MOP for the MEA in question. Based on its estimations on future expenses necessary for effective functioning of the compliance mechanism, it determines the necessary budget for a definite term. It also determines the contributions (binding ones) that should be granted by the contracting parties “on the basis of the UN General Assembly’s scale of assessment” of which legal basis is the UN Charter [58]. To strengthen these obligations, the decisions are also adopted on the basis of “an equal basis of developed and developing countries, consensus or double qualified majorities” [58]. In the majority-voting, both the majority of the countries present and voting and also the majority of contributors are required for deciding on the replenishment and on disbursement of resources.

In addition to the contributions determined by the budget, also voluntary contributions of the parties form the financial resources to the compliance mechanisms . However, as the voluntary contributions are not able to be estimated correctly and precisely, and the binding contributions can not be gathered timely and completely from the parties, financial resources usually fail to meet the needs of the compliance mechanisms.

Thus, both voluntary and binding contributions existing in the current system fail to guarantee a regular, more “timely,” “stable” and more “predictable” payment for financing compliance mechanisms [58] .

Lack of proper financing in CMs, on the other hand, can lead to raising some significant problems in their functioning. To illustrate, firs of all, it can result in reduction in the participation to the meetings of the ComplCom, and other bodies of the agreement. Jacur’s [58] proposal involving to hold committee meetings that take place in conjunction with COP meetings and with other subsidiary organs for which funds are available, can be assessed here as a remedy to this problem. It can also result in being unable to carry out some necessary activities for improving the parties’ compliance, such as providing experts’s views, and on-site examination and information gathering, and so failure in making scientific research, also in failure in assisting to developing countries in constituting, improving and maintaining their (technical-administrative) capacities, training the officials responsible for the implementation and compliance, and failure in encouraging the developed countries to comply decreasing their compliance costs.

In the final analysis, each of these shortcomings can cause delays and deficiencies of the parties in complying with the agreement’s obligations, and so in environmental protection and in global environmental governance and sustainable development interconnectedly.

4.2.10 Non-compliance Response Measures

The binding nature of the consequences is also one of the most important issues for debate regarding the consequences, for example, in both CMs under KP and Montreal Protocol, there is no consensus on it in both of them. Yet, it is possible to argue that as the cooperative-facilitative approach is dominant for their practical application, their application in both mechanisms can be effective even without a formally binding status, when a strong cooperation and coordination between parties can be ensured within the system.

There are indeed no provisions which can enforce the non-compliant country to comply with the consequences adopted within the NCPs . So, the effectiveness of the responses in particular and the effectiveness of the CM in general, to a large extent, depend on the non-compliant party, and its tendency towards to comply with them, rather than continue to non-compliance [59].

5 Conclusion

Based on the findings, it should be finally stated, although the traditional means have important weaknesses in ensuring compliance of parties with their commitments under MEAs, CMs have also some weaknesses and so they require improvement for better compliance. There is so a serious need for research on the ways for possible improvements of weaknesses of the current compliance mechanisms for better compliance [60].

In addition to improvement of their weaknesses, another highly necessary requirement for achieving the characteristics of better compliance in CMs appears undoubtedly as providing stronger coordination. In fact, with better coordination , all of these efforts to address the problems of the mechanisms can help speed up the progress towards better compliance, providing the use of resources most effectively, coherence/consistency and avoiding duplication among similar bodies.

Overall, it can be finally concluded that, in such a decentralized system of environmental agreements and institutions, to benefit from the current system by improving its functioning and creating conditions for stronger coordination between different mechanisms, raises as an important means of enhancing CMs of the MEAs. Therefore, here, it is argued that, in case that the weaknesses of the compliance mechanisms are improved and the coordination between them is ensured, the current system of compliance mechanisms can be responsive for better compliance [60], and successively ensuring better compliance with related commitments under MEAs should be positively effective on struggling against the problems of global warming. However, it should not be forgotten that providing and improving compliance can not be an overall solution, but just one of the steps on the way of coping with the challenges of global warming.