In deciding whether to develop a compliance mechanism and what form it should take, Parties and the MEA Secretariat can:
- Consider the experiences with compliance mechanisms for other MEAs, particularly those MEAs that are similar in aim or approach.
- Use a questionnaire for Parties and/or Signatories to complete, in order to identify which actions (or inaction) would trigger the mechanism and the nature of the mechanism.
- Wait until there is some experience implementing the MEA to determine the nature of implementation and compliance problems — and, at that point, craft a compliance mechanism that responds to those issues.
If a decision is made to develop a compliance mechanism, Parties may consider:
- What is the purpose of the compliance mechanism? What problems does it seek to redress?
- Some MEAs have a two-prong approach to non-compliance, depending on whether the non-compliance was due to lack of capacity (addressed through assistance) or willfulness (addressed through stricter measures).
- Which actions trigger the compliance mechanism?
- Who can file complaints with the mechanism?
- The Party in non-compliance can, as can other Parties.
- Often the Secretariat can refer a specific issue of non-compliance by a Party. The Secretariat may also be able to request the compliance mechanism to investigate broader trends and the issue of non-compliance.
- Increasingly, MEAs allow members of the public to submit complaints to the compliance mechanism. This is sometimes controversial, but evidence and Rio Principle 10 suggest that public access to justice improves compliance, good governance, and environmental protection.
- Should there be a requirement of exhaustion of remedies at the domestic level? If so, are there exceptions for futility, emergency, or other grounds?
- What is the composition of the compliance mechanism?
- There is usually a requirement for geographic balance.
- Frequently, there are requirements that members have the necessary legal, policy, scientific, or technical expertise.
- Members of a compliance mechanism usually are required to be independent, impartial, and objective, and to serve in their independent capacity (not as a representative of a government or other institution).
- Members are usually nominated by the Parties, and occasionally by NGOs; Parties select the members.
- What are the authorities of the compliance mechanism?
- In most instances, the compliance mechanism investigates, issues its
report, and suggests measures; but the COP or MOP usually has the
sole authority to impose sanctions. A few compliance mechanisms have
authority to impose sanctions without the COP or MOP.
- Authorities include:
- Offering advice on how to come into compliance, including assisting the
Party in developing a compliance strategy (facilitative). Capacity building
and technical assistance often is a priority for developing countries.
- Stronger measures, such as a declaration of non-compliance, financial
penalties, and loss of privileges.