Article 21 – Compliance
The Governing Body shall, at its first meeting, consider and approve cooperative and effective procedures and operational mechanisms to promote compliance with the provisions of this Treaty and to address issues of non-compliance. These procedures and mechanisms shall include monitoring, and offering advice or assistance, including legal advice or legal assistance, when needed, in particular to developing countries and countries with economies in transition.
Provisions relating to compliance with the provisions of a treaty are becoming more and more common in international agreements. Similar provisions to that contained in Article 21 of the Treaty are to be found in the Montreal Protocol on Substances that Deplete the Ozone Layer of 1987,123 the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Participation in Decision- making and Access to Justice in Environmental Matters,124 the 1997 Kyoto Protocol to the UN Framework Convention on Climate Change,125 and the 2000 Cartegena Protocol on Biosafety126 under the CBD. Compliance procedures are also being actively considered under a number of other international agreements. In 2002, UNEP has adopted a series of Guidelines on Compliance and Enforcement of Multilateral Environmental Agreements. The Guidelines contain a tool box of considerations, proposals, suggestions and potential measures that governments may wish to take into account in setting up or strengthening compliance procedures.
Compliance procedures are to be distinguished from dispute settlement mechanisms. In general terms, dispute settlement procedures are designed to deal with disputes between two or more Parties relating to a matter of interpretation or application of the treaty concerned. The dispute settlement procedure is limited by the scope of the actual dispute and by the parties to the dispute. Compliance procedures, on the other hand, deal more with general issues of compliance or non-compliance, including common treaty interests, and do not have to be raised by a party to any particular dispute. Dispute settlement procedures are adversarial in nature, while compliance procedures are non-adversarial. Dispute settlement procedures deal with disputes that have arisen in the past: compliance procedures deal more with formulating responses to difficulties that may arise in the future. The findings of any mechanism set up under compliance procedures are similarly not limited to the parties to any dispute, and conversely are normally not binding.
Article 21 requires that the Governing Body, at its first session, consider and approve “cooperative and effective” procedures and operational mechanisms to promote compliance and to address issues of non-compliance.
The temporal element requires no comment, beyond noting that the Governing Body will have a full agenda at its first session, and that the establishment of a fully-fledged compliance procedure and mechanism may require considerable debate.
The expression “cooperative” suggests that the compliance procedures to be established should be such as to stimulate amicable review and dialogue to address compliance issues, and should not be adversarial. The expression “effective” suggests that the response to a Contracting Party's compliance difficulties should be balanced against the cause, type, degree and frequency of such difficulties. The reference to the promotion of compliance indicates that a generic approach should be taken to compliance issues, and parties assisted in achieving compliance. On the other hand, the reference to issues of non-compliance suggests that actual issues and difficulties relating to non-compliance should be dealt with, including perhaps the difficulties of individual Parties. The Article also makes specific reference to “operational mechanisms”, which suggests the possibility of establishing a specific body or committee to consider compliance issues.
The procedures and mechanisms are to include monitoring of compliance with the Treaty provisions and offering advice or assistance. The reference to the possible offering of legal advice or assistance is particularly interesting. Since many of the compliance issues relating to the implementation of the Treaty are likely to lie in the realm of private law, especially in securing compliance with the provisions of the standard MTA, many developing countries and countries with economies in transition may welcome the formal provision of such assistance. It should be noted that providers of PGRFA have no direct financial interest to prosecute alleged non-payment of monies due under the MTA, in particular because such payments implementing Article 13.2(d)(ii) are made to the Treaty's funding strategy and not to the provider of the genetic resources. In addressing such occurrences legal advice or assistance from a Treaty-based source is perhaps therefore especially warranted. In this connection the well-developed capability of FAO in delivering legal assistance is to be noted.
Other methods of compliance include “soft law”, knowledge sharing, collaborative mechanisms, and the marshalling of rhetoric. For example, the non-binding World Charter for Nature127 imposes broad duties of implementation on Member States, but provides no concrete mechanisms for compliance. Rather, the text stresses public education, dissemination of scientific knowledge, ongoing research, and cooperation among various international actors, public disclosure of planning and environmental assessment information and public consultation and participation therein.
A related question – how compliance with the MTAs (for Annex I as well as non-Annex I materials) will be enforced – was not specifically addressed in the negotiations, beyond implying, in Article 12.5 that the primary means will be through recourse to national legal systems. At present under the in-trust agreements between FAO and the CGIAR Centres, the system is largely self-regulating, and egregious violations are discouraged primarily through non-legal means and by the threat of bad publicity. General issues relating to the enforcement of MTAs (if each violation of an MTAs is determined to constitute a violations by the particular Contracting Party with jurisdiction over such MTA), could take up much of the time of compliance committee or other mechanism set up under Article 21. This issue will of course also be a focus of discussion in the Governing Body when drawing up the standard MTA. In addition, the general issues relating to compliance with the standard MTA are also likely to be one of the most important sets of issues to be dealt with by any operational mechanism.
123Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, 26 I.L.M. 1550 (entered into force 1 January 1989), amended by 30 I.L.M. 539, amended by 32 I.L.M. 875 (1991).
124UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), 25 June 1998, 38 I.L.M. 517 (1999).
125Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, 37 I.L.M. 22 (1998).
126Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000, 39 I.L.M. 1027 (2000).
127The World Charter is, as a General Assembly Declaration, not strictly binding in international law; however, it contains expressions of customary international law and strongly normative language. See E. Brown Weiss, P.C. Szasz & D.B. Magraw, International Environmental Law: Basic Instruments & Reference (New York, Transnational, 1992).
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