2021] 149
Considering the common interest pursued, Parties viewed financial
and technical assistance to those struggling with compliance as
preferable to imposing liability on those not in compliance with their
climate change obligations.
That is, the majority of Parties believed
it is more important to promote compliance than to punish
noncompliance, especially as the use of sanctions would discourage
countries’ participation in the treaty and thus encourage free riding.
All these factors prompted efforts to prevent disputes and
introduce innovative international monitoring procedures—inspired
in part by tried and tested methods in other legal fields (such as
human rights).
Since the 1990s, several environmental agreements
have succeeded in reinventing themselves and established reporting
and other monitoring methods (monitoring networks, inquiries, etc.)
with more specific, ambitious, global, and coherent mechanisms to
institutionalize monitoring and response to noncompliance.
The
first noncompliance procedure for environmental agreements—
drawn up in 1990 in the framework of the Montreal Protocol of the
ozone regime
—has been taken up and adapted by other
environmental conventions, slowly becoming a standard practice.
Although inspired by the Montreal Protocol model, all these
procedures have peculiarities of their own.
The Kyoto Protocol of the climate change regime gave rise to the
most comprehensive and intrusive noncompliance procedure to
date.
Divided into two branches—a facilitative branch and an
. See id. (describing how “focus when addressing non-compliance with
environmental obligations have [sic] moved away from . . . trying to determine
liability and remedies for damages caused, to preventing them occurring and if
they do occur, resolving them peacefully in a non-contentious and non-
adversarial manner”).
. See ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY:
COMPLIANCE WITH TREATIES IN INTERNATIONAL REGULATORY REGIMES 2–4 (1995).
. See OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS, RESPONSE TO
THE REQUEST OF AD HOC WORKING GROUP ON THE PARIS AGREEMENT 2–4 (2017),
https://www.ohchr.org/Documents/Issues/ClimateChange/OHCHR_APA%20sub
mission_May2017.pdf.
. See Lindsay Maizland, Global Climate Agreements: Successes and
Failures, COUNCIL ON FOREIGN RELS. (Oct. 29, 2021, 9:00 AM),
https://www.cfr.org/backgrounder/paris-global-climate-change-agreements.
. The Montreal Protocol on Substances that Deplete the Ozone Layer art.
10, June 29, 1990, 30 I.L.M. 537 (establishing the financial mechanism for
developed countries to provide financial and technical assistance to developing
countries).
. See, e.g., Cartagena Protocol on Biosafety to the Convention on Biological
Diversity, Jan. 29, 2000, 39 I.L.M. 1027; Convention on Access to Information,
Public Participation in Decision-Making and Access to Justice in Environmental
Matters, June 25, 1998, 2161 U.N.T.S. 447; Convention on Long-Range
Transboundary Air Pollution, Nov. 13, 1979, 18 I.L.M. 1442.
. See Kyoto Protocol to the United Nations Framework Convention on
Climate Change, Dec. 10, 1997, 2303 U.N.T.S. 162; see also Malgosia