The nature, origin and impact of legally binding consequences: the case of the climate regime

The Marrakesh Accords provide a detailed compliance system for the Kyoto Protocol. An innovative feature of this system is an Enforcement Branch authorized to apply punitive measures or “consequences” in the second commitment period to Annex I Parties that have been found to be in non-compliance in the first commitment period. However, even after the latest Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC), COP-11, and the first COP serving as the meeting of the Parties to the Kyoto Protocol, COP/MOP-1, it is not yet clear whether these consequences will be legally binding. The purpose of this paper is three-fold. First, we examine the legal nature of the punitive consequences embedded in the Marrakesh Accords. Second, we discuss potential motives for making these consequences legally binding. We point out that one such motive is that their implementation requires cooperation by the Party that is in non-compliance. In this regard, Kyotoȁ9s compliance system differs from other international compliance systems equipped with punitive consequences, such as those of the WTO and the UN. Finally, we consider whether making the punitive consequences legally binding is likely to make a difference. The conclusion, which should be of interest to both academic researchers and the policy community, is that the legal status of the consequences is likely to have only a modest effect on compliance levels. A country that deliberately fails to abide by other legally binding commitments under the Kyoto Protocol is also likely to resist the application of punitive consequences, regardless of whether these consequences are made legally binding or not.     

'Alive and Kicking': The First Meeting of the Parties to the Kyoto Protocol

Long confined to the realm of political uncertainty, the Kyoto Protocol finally entered into force on 16 February 2005. As for its substantive bearing, however, the Protocol is, at best, an initial framework for more detailed rules deferred to later Meetings of the Parties. Convening for the first time in Montreal, Canada, from 28 November to 9 December 2005, the Kyoto Protocol's Meeting of the Parties decided on important operational aspects of the Protocol, approving the Marrakesh Accords and thereby implementing the Protocol's flexibility mechanisms and compliance regime. Arguably of even greater magnitude was the agreement to engage in consultations on future mitigation commitments, notably with a view to the period after 2012, when current commitments expire. This article outlines principal decisions passed at the meeting in Montreal, affirming that, while daunting challenges still lie ahead, one thing has now been shown for certain: contrary to many premature obituaries, the Kyoto Protocol is anything but dead.     

The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety: An analysis and implementation challenges

The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress was finally adopted on 15 October 2010 at Nagoya, Japan. It was negotiated pursuant to a mandate established by the First Conference of the Parties serving as the Meeting of the Parties in 2004 under an enabling provision in the Cartagena Biosafety Protocol. The Supplementary Protocol seeks to deal with damage to biodiversity as well as ‘associated’ traditional material or personal damage. It delineates two pathways to dealing with such damage: the administrative approach that empowers a competent authority to deal with the matter administratively, without initial recourse to courts; and a civil liability approach that requires litigants to seek private law remedies through national legal systems. However, while the Supplementary Protocol has elaborate and comprehensive provisions implementing the administrative approach, it incorporates only a single article on civil liability which does little more than exhort parties to continue to apply their existing domestic law on the subject or establish rules to deal specifically with the matter. This was not the outcome anticipated when the negotiations started. It was the expectation, primarily of developing countries then, that the prospective protocol would deal essentially with civil liability and set out substantive and procedural rules on liability and redress. This article traces how and why all this came to pass. It also analyses the provisions, and the implications, relating to the administrative approach and the single enabling article on civil liability. It deals also with the challenges in implementing the administrative approach, novel to most countries. Finally, it examines the prospect for the emergence in the future of a more elaborate international civil liability regime.     

High level Antarctic EIA under the Madrid Protocol: state practice and the effectiveness of the Comprehensive Environmental Evaluation process

The 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), the latest instrument of the Antarctic Treaty system (ATS), establishes environmental standards to manage 10% of the planet. Under the Madrid Protocol, all activities subject to advance notice reporting obligations under the 1959 Antarctic Treaty are required to undergo prior Environmental Impact Assessment (EIA). The highest level EIA—termed a Comprehensive Environmental Evaluation (CEE)—requires international scrutiny. This is the only form of EIA where such scrutiny occurs and the only context under the Madrid Protocol or any other part of the ATS where the proposed actions of State Parties, or operators subject to their jurisdiction, are subject to formal international review. Whilst this review does not provide a veto, it has been viewed as an important development in the Antarctic multilateral regime. To date, there have been 19 CEEs. This article reviews the Antarctic CEE process and evaluates its application in practice against the environmental obligations established in the Protocol. Whilst most CEEs are substantial documents and processes, which have raised the standard of environmental care in the area, there are significant generic limitations. Not one CEE appears to have led to substantial modification of the activity as first elaborated by the proponent, let alone a decision not to proceed with the activity, despite this being a mandatory consideration. There are indications that the imperatives in the CEE process are often administrative and diplomatic rather than environmental and that notwithstanding the international scrutiny of draft CEEs, state action may not be significantly changed. Suggestions are made on improvements to the CEE process. The Madrid Protocol is a framework convention, designed so that its technical annexes, including that addressing EIA, may be periodically updated. Twelve years after its entry into force, and almost 20 years after its adoption, such updating may now be useful.     

The Bonn Agreement to the Kyoto Protocol – Paving the Way for Ratification

This article provides a short account of the international climate negotiations that took place in Bonn from 16 to 27 July 2001. After the Sixth Conference of the Parties to the Framework Convention on Climate Change failed in November 2000, the Parties had decided to suspend the meeting. The ministers present at the resumed session successfully adopted the "Bonn Agreement to the Kyoto Protocol", a set of political compromises for the most contentious issues left open by the Kyoto Protocol. Although many details had been transferred to the Seventh Conference of the Parties, November 2001 in Marrakesh, Morocco, the Bonn Agreement already paved the way for ratification of the Kyoto Protocol and its entry into force. The Marrakesh Accord adopted on 10 November 2001transforms, with a few exceptions, this political agreement into bindinglegal text.     

Genesis of the CDM: the original policymaking goals of the 1997 Brazilian proposal and their evolution in the Kyoto protocol negotiations into the CDM

A body of literature is emerging applying critical consideration to the Kyoto Protocol Clean Development Mechanism’s (‘CDM’) achievement of policy goals regarding sustainable development, geographical distribution of projects and related matters. This article places this literature in the context of the policymaking goals of the CDM’s Brazilian architects. The CDM arose from the Brazilian Proposal’s Clean Development Fund, and was negotiated between Brazil and the United States in the weeks preceding the Kyoto Conference of Parties. The CDM’s Brazilian architects continued to pursue their underlying policy goals by taking a leadership position in the Marrakesh Accords negotiations. During this period Brazil’s primary policy objectives comprised achieving meaningful mitigation of GHG emissions to avoid dangerous interference with the climate system, derailing a perceived US/IPCC initiative to allocate emissions cap obligations in the Kyoto Protocol on the basis of current emissions, and taking a leadership position both among the G-77 and China and in the multilateral climate negotiations as a whole. The CDM arose in this context from the G-77 and China’s desire to coerce the North’s compliance with the North’s emissions cap obligations through an alternative means of compliance. As a result, there was no focus on broad conceptions of sustainable development, or on broad distribution of CDM projects throughout the South. Instead, the CDM’s Brazilian architects envisioned that CDM-related sustainable development would arise exclusively from the presence of the CDM projects. Similarly, the Brazilian Proposal advocated allocation of the Clean Development Fund on a basis proportionate to each non-Annex I countries projected 1990–2010 greenhouse gas emissions. These views persisted through the evolution of the Clean Development Fund into the CDM and through Marrakesh Accords negotiations. This article argues that the CDM has largely met the policy goals of its Brazilian architects and that the pursuit of different, additional, refined or more nuanced policy goals necessitates corresponding refinements to the CDM, or any successor mechanism, specifically targeting those different, additional, refined or more nuanced policy objectives, lending support to the emerging literature proposing changes to the CDM to pursue corresponding policy objectives.     

How Can the European Union Contribute to a COP-6 Agreement? An Overview for Policy Makers

During the 6th Conference of Parties (COP-6) in The Hague, the Netherlands, November 2000, crucial progress on a number of outstanding issues related to the Kyoto Protocol will have to be made to open the way for its early ratification, if not to save it from complete failure. Given the present lack of internal US political support for the Kyoto Protocol, the EU may play a pivotal role in making the Kyoto Protocol agreement a reality even without initial ratification of the US, if its able to provide sufficient leadership. In this overview article we discuss the main issues under negotiation, the problems of finding agreement and opportunities for the EU to catalyse a compromise agreement at COP-6, building on key scientific papers as included in this issue and discussions at the European Forum on Integrated Environmental Assessment Climate Policy Workshop in Amsterdam. Key elements are the inclusion of sinks, the use of the Kyoto Protocol mechanisms as a supplement to domestic action and the international compliance system. Domestic implementation of climate policy is a major factor for the EU's credibility.     

Ozone Partnerships,the Construction of Regulatory Communities,and the Future of Global Regulatory Power*

This article describes our effort to understand the Montreal Protocol as an unconventional approach to regulation, one that encourages the construction of volunteer partnerships, episodic networks, and regulatory communities comprised of public and private actors criss-crossing institutional and national boundaries. We examine three provisions of the Protocol that give official governments and private global corporations latitude to create temporary arrangements that leap beyond their typical institutional constraints. The provisions that promote collaboration are the use of trade sanctions as an incentive to cooperate; the creation of the Interim Multilateral Ozone Fund (IMOF), the funding mechanism that links the fate of developed and developing nations; and, the establishment of an international clearinghouse to share technology for reducing ozone depleting substances. Singly and together these mechanisms of coercion, exchange, and normative pressure permit individual actor's interests to be pursued, bind them into ephemeral but replicable networks of action, and result in the creation of the very meaning of regulatory compliance and effectiveness. The discussion draws out the implications of a transcorporate definition of power and global problem solving as it relates to democratic reliance on the political sovereignty of individual actors and nations.     

Compliance with anti-human trafficking policies: the mediating effect of corruption

Human Trafficking is an atrocious crime that represents a gross assault on human rights and the United Nations states that it is among the fast growing types of criminal activity. Recognizing the need for counteractive measures, in 2000, the United Nations General Assembly adopted the Convention against Transnational Organized Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Protocol). Using measures of country compliance with the Protocol, past research offers empirical evidence that corruption is a primary deterrent to compliance. Further, previous field studies and surveys suggest that a greater share of women in government should positively contribute to country compliance; however, this result is largely not borne out in empirical studies. It is hypothesized that the effect of the share of women in government on compliance is fully mediated by corruption, indicating that there is an indirect effect of women in government on compliance, rather than a direct effect. This hypothesis is empirically tested using a mediation model and the results indicate that the indirect effect is statistically significant. The empirical results presented suggest that a greater percentage of women in government reduces country corruption, which in turn increases country compliance with the Protocol. The policy implications of these findings are discussed and include suggestions to enhance female participation in government.     

The implementation of the Nagoya ABS Protocol for the research sector: experience and challenges

Over the years, researchers in public institutions and universities have accessed genetic materials from a variety of sources, freely exchanged them with fellow researchers and institutions and shared their research results with foreign and local collaborators. The 2010 Nagoya Protocol regulating access to genetic resources is set to change this scenario. This treaty requires country parties to put in place enhanced ABS measures regulating access to their genetic resources and to provide for the sharing of benefits arising from their utilization. These measures include minimum access standards, mandatory prior informed consent of indigenous and local communities, compliance with the domestic laws or requirements of the provider country and monitoring the utilization of genetic resources. This is aimed at commercial research. Non-commercial public research which contributes to the conservation and sustainable use of biological diversity is encouraged, particularly in developing countries, through simplified measures. There are undoubtedly practical challenges in operationalizing this provision without impeding research in the sector most potentially affected by ABS measures. This article presents the results of a survey of the practices of such researchers in one developing country, namely Malaysia. It examines the potential implications for the national implementation of the Protocol. Given country specificities, this study highlights and shows the importance of increasing knowledge about existing practices for an efficient design and implementation by developing countries of a complex legislation such as the Nagoya ABS Protocol.     

Interaction between EU carbon trading and the international climate regime: synergies and learning

This article discusses the developing interaction and cross-scale effects between the company-focused EU emissions trading (ETS) and the country-focused international climate regime, in particular the Kyoto Protocol. Key questions discussed are first, what has been the character of selected interactions so far—synergistic or disruptive? Second, what kinds of interaction mechanisms have been driving the interactions; normative, cognitive, or utilitarian? Third, with regard to cross-scale effects, has significant learning taken place between institutions at different levels? Four sub-cases of interaction are analysed: first, the interaction between the Kyoto Protocol as source and the ETS as target which started after the adoption of the Protocol in late 1997. Second, a next phase of interaction started in 2004 when the EU states started to develop national allocation plans (NAPs) where bringing in credits/allowances developed under the Clean Development Mechanism (CDM) became one compliance strategy. Third, the opposite relationship is examined, i.e., with the ETS as the source and the Kyoto Protocol institutions as targets. The first phase started after the adoption of the 2003 ET Directive and with the developing ETS possibly leading to a more rapid and extensive CDM development than would otherwise have been the case. Fourth and finally, a separate case of interaction deals with the possible role the ETS plays and could play for an emerging global carbon market. Key findings are that these cases are mainly of a synergistic nature. Furthermore, in order to understand the driving forces, it is necessary to draw upon several interaction mechanisms, particularly cognitive and utilitarian ones. Finally, as to cross-scale learning, the post-2012 global regime may avoid pitfalls related to the allocation process experienced by the ETS. But the learning and diffusion potential should not be exaggerated.     

合规计划有效性评估的制度构成

刑事合规的核心是能够有效实施的合规计划。合规计划有效性评估的制度构成应涉及评估主体、评估对象与评估讨论等几方面。评估主体应具备专业背景和承担法律责任的能力,因此目前第三方组织作为评估主体的思路有其合理之处,但是在构成方式、人员性质等方面仍值得商榷。合规计划有效性的评估对象应包括合规计划本身及其实施情况。在评估涉案企业的具体合规计划时,应根据合规计划是制定、实施于犯罪之前还是之后,对评估标准略作区分,并遵循坚持动态评估、强调内部评估、尊重常识判断与关注个案报告的原则。评估结论目前是检察机关在起诉阶段作出是否起诉等决定的重要参考。如果未来全面建立起企业合规制度,评估结论还应是审判机关定罪量刑的重要情节,建议司法机关将其明确为鉴定意见。     

Russia’s role in UNFCCC negotiations since the exit of the United States in 2001

The unexpected exit of the United States from the Kyoto Protocol in 2001 signaled the exponential increase in the importance of the Russian Federation as a key player in international climate change politics. Until then a relatively minor player, Russia’s active participation in the evolution of the climate change regime is now considered a paramount and immediate necessity. A longitudinal study of Russian climate policy over the years is therefore a highly useful exercise as it allows for the better understanding of current developments and provides some basis for prediction of its future actions. The primary aim of this article is threefold: First, to offer a comprehensive account of Russian involvement in international climate negotiations. Secondly, to clarify the actual reasons behind Russia’s decision to delay its ratification of the Protocol for almost three long years, and finally, to try and map out the post-2012 positions of Russia on the road to the 2009 Copenhagen Conference of the Parties.     

The convention on biological diversity: Ten years on and the strategic plan

Abstract

The Conference of the Parties to the Convention on Biological Diversity (Convention) has taken 114 decisions and launched programmes of work to address five biome‐based themes and thirteen cross‐cutting issues. The challenge for the Convention now is to demonstrate, through action and deed, that it is an effective vehicle for implementing this policy. In response to this challenge, the Conference of the Parties at its fifth meeting, in May 2000, decided to initiate a process to develop a Strategic Plan for the Convention that would provide an important mechanism for the implementation of this policy. This Note, which is an abridged version of document UNEP/CBD/MSP/2, has been prepared to assist participants in this Conference to provide more focused suggestions for the development of the Strategic Plan for the Convention.     

Data protection 1998–2008

This article reviews key developments in data protection legislation, case law and practice between 1998 and 2008. Over this time data protection has become a mainstream compliance topic for business and government alike. Having started in 1998 as a specialist area of limited general application, over the decade this area of law has been widely applied to access rights, international transfers of information and data losses. We are now seeing major changes in enforcement of data protection legislation (including the power to fine and increased use of audits) which will continue the focus on compliance.     

企业有效合规整改的基本思路

有效合规整改的基本目标,是涉案企业建立一套有效预防犯罪的管理机制,达到企业依法依规经营的效果。为实现这一目标,企业合规整改应与日常性合规体系搭建具有本质的区别,将合规整改的"针对性"和"体系化"进行有机的结合。对于一个涉嫌犯罪的企业而言,一旦被纳入合规监督考察的对象,一般应引入四项基本的合规整改要素:一是在认罪认罚的前提下停止犯罪行为,积极配合刑事追诉行动,采取补救挽损措施,处理责任人;二是查找犯罪原因,发现造成犯罪发生的制度漏洞、管理隐患和治理结构的缺陷;三是针对上述漏洞、隐患和缺陷,进行有针对性的制度纠错和管理修复,切断犯罪发生的因果链条,避免同一犯罪的再次发生;四是建立一种整体的、全面的和长远的预防犯罪机制,引入有针对性的专项合规管理体系。     

The inefficacy of private enforcement of directors’ duties

Company directors play an important role in society. Their activities have significant effects on the interests of their companies, shareholders and other stakeholders. Consequently, the law regards them as fiduciaries and imposes duties which set out behavioural expectations. The private enforcement regime is the primary mechanism adopted by many common law jurisdictions for securing compliance with directors’ duties. The crucial question is whether this regime is effective in securing enforcement of directors’ duties. This article addresses this question by examining the fundamental weaknesses of the private enforcement regime. In exploring these weaknesses, it focuses on the UK and Nigerian experience. It crucially argues that the private enforcement regime, due to its weaknesses, is unable to provide deterrence and compensatory benefits. It is therefore ineffective as an enforcement mechanism for breach of directors’ duties. This article therefore concludes that there is need for a complementary enforcement regime.     

Enforcing the Climate Regime: Game Theory and the Marrakesh Accords

This article reviews basic insights about compliance and "hard" enforcement that can be derived from various non-cooperative equilibrium concepts, and evaluates the Marrakesh Accords in light of these insights. Five different notions of equilibrium are considered – the Nash equilibrium, the subgame perfect equilibrium, the renegotiation proof equilibrium, the coalition proof equilibrium, and the perfect Bayesian equilibrium. These various types of equilibrium have a number of implications for effective enforcement: (1) Consequences of non-compliance should be more than proportionate. (2) Punishment needs to take place on the Pareto frontier, rather than by reversion to some suboptimal state. (3) An effective enforcement system must be able to curb collective as well as individual incentives to cheat. (4) A fully transparent enforcement regime is not unconditionally a good thing. It is concluded that constructing an effective system for "hard" enforcement of the Kyoto Protocol is a formidable task that has only partially been accomplished by the Marrakesh Accords. In practice, however, the design of the compliance system for the climate regime had to balance a desire to minimize non-compliance against other important goals, including the need for due process.     

Challenges and Outcomes at the Ninth Session of the Conference of the Parties to the United Nations Framework Convention on Climate Change

From 1 to 12 December 2003, the Ninth Session of the Conference of the Parties to the United Nations Framework Convention took place in Milan, Italy. This conference continued the laborious effort of developing an international climate regime by preparing for the Kyoto Protocol’s entry into force. Some two dozen decisions were adopted on a wide range of options for responding to climate change. This paper assesses the progress achieved at the conference on a number of issues. Among these were operational details for implementing forestry projects under the Convention’s Clean Development Mechanism, and guidelines for reporting on greenhouse gas emissions and removals from agriculture, forestry and land-use change. Parties also decided on rules with respect to two funds, the Special Climate Change Fund and the Least Developed Country Fund. With respect to developing countries, Parties continued discussions on rules for building response capacity in light of the expected adverse effects of climate change and transferring environmentally sound technology. They also discussed how to incorporate scientific advice from the Third Assessment Report of the Intergovernmental Panel on Climate Change into the negotiations. Although Russia did not ratify the Kyoto Protocol prior to the conference, Milan demonstrated momentum and interest among Parties to support the climate regime. Nevertheless, it is doubtful whether the detailed discussions were able to contribute to preparing for the long term. To this end, this paper concludes that more discussion and leadership is required to bridge the North/South gap if a post-2012 climate regime is to stand.     

WHAT DOES ACCESS TO JUSTICE REQUIRE? — OVERCOMING BARRIERS TO INVOKE THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

Persons with disabilities have a right to effective access to justice under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). This article provides insights on the parameters of that right, including a close examination of the history and text of Article 13, which directly addresses access to justice and other relevant UNCRPD provisions. In addition to the UNCRPD, this article discusses implementation guidance from the Committee on the Rights of Persons with Disabilities, including its guidelines for State Party reports and jurisprudence. The initial reports by eleven States Parties — Argentina, Azerbaijan, China, Costa Rica, Croatia, Dominican Republic, Ecuador, Hungary, Mexico, Peru and Turkmenistan — are also considered. The Committee’s feedback regarding implementation of Article 13 by these eleven States parties is critiqued for being limited and inconsistent. This article then attempts to clarify what effective access to justice actually requires. It does so by focusing on the insights that can be drawn from implementation of Article 13 since the UNCRPD was adopted as well as implementation guidance from the Conference of States Parties, the International Disability Alliance, the World Network of Users and Survivors of Psychiatry and the National Center for Access to Justice. This article concludes with recommendations on how the Committee can improve its guidance on access to justice to help ensure that equal rights will not be illusory for persons with disabilities.