Non-compliance can be a challenging issue to address in any international agreement. States sign agreements voluntarily and are usually free to withdraw at any time in accordance with the specified procedure for withdrawal in the particular agreement (those who do withdraw will have to face the loss of treaty benefits and privileges, which may be considerable). Non-compliance is frequently the result of incapacity rather than intentional disregard for an agreement’s rules; and in these circumstances, assistance arguably is more appropriate than penalisation. For these reasons, the approach to non-compliance in MEAs has generally been through the use of non-coercive means to bring Parties into compliance (and to prevent them from getting into non-compliance in the first place).
Compliance mechanisms created by, or pursuant to, the provisions of an MEA use a variety of approaches to address non-compliance. Parties typically are encouraged to self-report non-compliance, particularly when lack of capacity may be the cause and assistance may be in order. A compliance body may be created to review and assess instances of non-compliance and to provide or facilitate capacity assistance to Parties having difficulties.
There are instances, however, where non-compliance may be the result of negligence or insufficient commitment by a Party to its obligations. Compliance mechanisms may rely upon publicising information about non-complying Parties as a means to induce compliance (typically referred to as “naming and shaming”). Moreover, compliance mechanisms may call for cases of non-compliance to be brought to the attention of the Conference of the Parties (COP) for potential further action. The COP may be empowered to consider imposing sanctions for severe cases of deliberate non-compliance.
In proposing, developing, and implementing compliance mechanisms, both developing and developed countries can play significant roles. For example, it was on the suggestion of Trinidad and Tobago that the Montreal Protocol established an Implementation Committee.
In reviewing a potential case of non-compliance, compliance mechanisms typically consider the totality of circumstances: the State, history, nature of violation, etc. This broader view is important in determining an appropriate response. Often violations occur due to lack of awareness, and in these instances a facilitative response to bring the Party back into compliance would be the most appropriate. At the same time, there is the potential of free riders, for which stronger responses are necessary. Thus, compliance mechanisms need to distinguish between violations arising from a lack of will to comply and those arising from a lack of capacity to comply.
In addition to the more formal compliance mechanisms (which make up most of the examples listed here), there are some less formal approaches. These include, for example, the Montreux Record under the Ramsar Convention by which Parties can voluntarily list Ramsar sites that are facing particular challenges. This approach can help Parties generate public awareness, mobilize financial resources (if necessary), and build political consensus to undertake the necessary measures.