Enacting and developing international environmental law - Introduction to International Environmental Law - page 65

Since the ozone regime, the implementation committees of environmental
agreements have functioned as follows:
1 The implementation committee solves a problem (for example, a member
state will not or cannot comply with the treaty) preferably through fi nan-
cial and technical assistance (or education), especially in the case of a
developing country.
2 In the case of an obvious deliberate violation the implementation commit-
tee attempts to avoid punitive measures and reverts to subtle pressure such
as 'naming and shaming': the meeting of the parties (by consent of the
implementation committee) names the non-observant country as being in
breach of the treaty. The meeting of the parties also asks the country for a
well-founded account of what measures it is taking to resume observation
of the treaty obligations.
3 As a last resort, especially if a state is in deliberate violation of the treaty,
repeatedly or over a long duration, the implementation committee can
also take stronger measures such as temporary suspension of treaty rights.
The establishment of implementation (or compliance) committees has
frequently proved problematic, unless the committee was specifi cally
established in the treaty itself. The most notable example was that of the
compliance committee of the climate regime.
The climate regime compliance committee's enforcement branch has been
empowered to take strong decisions against non-compliant parties, such as,
for example, excluding states from carbon trading. According to Article 18 of
the Kyoto Protocol, when the Protocol enters into force the meeting of the
parties shall approve procedures to address cases of non-compliance. However,
it expressly states: 'Any procedures and mechanisms under this Article entail-
ing binding consequences shall be adopted by means of an amendment to this
Protocol.'
Nevertheless, this compliance committee was established by a decision of
the meeting of the parties instead of an amendment; it would have been
simply too time-consuming for all parties to process the amendment via their
national systems. It would also probably have split the parties into those who
accepted the amendment and those who did not. Such a result would have
been unfortunate for a compliance committee whose objective was to apply
penalties equally to all Annex I states that had bound themselves to emission
reductions.
The enforcement branch of the climate regime's compliance committee there-
fore has real powers. Unless a state fulfi ls its obligation of emission reduction,
the enforcement branch can, for example, suspend its right to apply the fl exible
mechanisms in emission reduction: that is, terminate its right to trade in emission
reduction credits.