TY - JOUR
AU - Marsden,, Simon
AB - This is the second annual report on non-compliance procedures (NCPs) in the recent history of this yearbook. Due to the large number of these procedures in existence and space limitations, this report will focus upon the Implementation Committee (IC) and Compliance Committee (CC) of, respectively, the United Nations Economic Commission for Europe (UNECE) 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention), and the related Protocol on Water and Health. The IC was established by the Meeting of the Parties (MOP) at its sixth session in November 2012, further to Decision VI/1 on support to implementation and compliance (Doc. ECE/MP.WAT/37/Add.2). The CC was established in accordance with Article 15 of the Protocol and Decision 1/2 on Review of Compliance. The first part of this report will consider the respective objectives and functions of the IC and CC, and the second part will consider specific compliance matters determined by each in 2017. The objective of the IC is to facilitate, promote, and safeguard the implementation of, application of, and compliance with the Water Convention. It is furthermore to be non-confrontational, non-adversarial, transparent, supportive, and cooperative. Nine members constitute the IC, each of whom serves in a personal capacity; eight meetings have been held to date, with the first in Geneva, Switzerland in June 2013, and most recent in May 2017 in Haparanda, Sweden. The IC considers requests for advice, self-, or party-to-party submissions, and can also consider initiatives itself. It also examines specific issues of implementation of and compliance with the Water Convention, can take measures including recommendations to the MOP, and performs other functions assigned by the MOP, including general issues of implementation and compliance. Under Annex I of the above noted decision establishing the IC, section V deals with the advisory procedure and provides that a party can request advice from the IC about difficulties in implementation, or a party or parties can request advice about their efforts to implement and comply with the Water Convention. Participation in this procedure is subject to consent and it is not possible to make recommendations to the MOP to take any measures—only that such a suggestion can be made to the party or parties themselves. Under Annex I, section VI, where a party makes a submission to the IC itself or where a party-to-party submission is made by one affected by another party’s behaviour, these can also be considered by the IC. Similarly, subject to resources, under Annex I section VII, if the IC becomes aware of an implementation or compliance issue, including where notified by a member of the public, may request the party concerned to provide information, or with its consent, gather information itself. It can also invite parties and non-parties to attend its meetings and obtain expert advice, and that of the MOP and other convention bodies. Further to this—and its core rules of procedure—the IC may recommend that domestic regulation be established or strengthened, aid the party or parties in setting up transboundary water cooperation agreements and other measures to strengthen cooperation and facilitate technical and financial assistance and capacity building. The IC can also ask and help the party or parties to develop an action plan, invite the party concerned to submit progress reports of compliance efforts, and recommend that the MOP take measures. Upon such recommendations, the MOP can do any of these things. It can also issue statements of concern, declarations of non-compliance, and cautions; issue the suspension of special rights; and suspend privileges. Other non-confrontational, non-judicial, and consultative measures are possible. In 2015, the IC reported to the MOP (Doc. ECE/MP.WAT/2015/5) in its seventh session as required by decision VI/1 (Annex I, para. 44). At that time five meetings of the IC had been held in the inter-sessional period since its establishment at the sixth session of the MOP in 2012. The IC outlined its role and functions to the MOP including its core rules of procedure (Annex II), noting that ‘[t]he mission of the Committee was to assist Parties in implementing the Convention and facilitating the prevention of water-related disputes and differences. It was considered important to preserve the credibility and authority of the Committee in fulfilling that mission’ (para. 12). Significantly, as emphasized in the previous year’s report to this yearbook, following the second meeting of the IC, the committee reports to the MOP the correspondence received from the chair of the IC of the Convention on Environmental Impact Assessment in a Transboundary Context and the Legal Service of the European Commission concerning Party to Party submissions by European Union member states under the mechanism: ‘In that context, the members of the Committee stressed that the scope of the Water Convention mechanism lay outside dispute settlement, and the purpose of the mechanism was to assist Parties to avoid disputes’ (para. 15). This conclusion was drawn following the MOX Plant case (Case C-459/03, Commission v Ireland [2006] ECR I-04635). In relation to the CC, its functions are to consider any submission, referral, or communication relating to specific compliance issues, prepare a report on compliance or implementation of the Protocol where requested by the MOP, and monitor, assess, and facilitate implementation of and compliance with reporting requirements under Article 7(5) of the Protocol. The CC can examine compliance issues and make recommendations or take measures; it has prepared the Guidelines on Communications from the Public, in conjunction with both the UNECE and the World Health Organisation Regional Office for Europe (UNECE, Guide to Public Participation under the Protocol on Water and Health, Doc. ECE/MP.WH/9, 29–30). In response to concerns related to the first reporting exercise for the Protocol, in particular to set targets and target dates, at its fifth meeting in 2010 the CC decided to improve facilitation and assistance to parties. At its sixth meeting in 2011 it outlined a new consultation process that would help parties develop an accurate analysis of their situation in order to set better targets, make recommendations on how parties could improve their situations, and help them gain support from donors, agencies, and other authorities. The consultation is not intended to be an inquisitorial process and must be initiated by the party itself, with sessions held in private if required. Public communications can be made under the Protocol’s compliance mechanism, like the Aarhus Convention Compliance Committee (ACCC) function. The Water and Health Protocol CC mechanism is, like that of the ACCC, designed to guarantee the rights of individuals and the public; hence, this is a logical outcome. The ‘guidelines on communications from the public’ above emphasize that the experience from the ACCC will be drawn on in this respect. While the powers of the Protocol’s CC are very limited, it can decide on certain measures and make recommendations to the MOP to help it decide what steps can be taken to help a party return to compliance. The CC has also provided an Interpretation of the Provisions of the Protocol on Water and Health Related to Transboundary Waters, in some ways assuming the role of the Legal Board to the Convention, which was established by the third MOP in November 2003, to deal with legal questions related to the work under the Convention upon request by the Convention’s bodies. One of these legal questions was the establishment of the IC (Doc. ECE/MP.WAT/AC.4/2012/2). As indicated above, this followed the establishment of the CC, which, unlike the IC, had a specific legal basis under Article 15 of the protocol. The second part of this report focuses on specific compliance matters in 2017. As indicated above, the eighth meeting of the IC was held on 23–4 May 2017 in Haparanda, Sweden, at the invitation of the Finnish–Swedish Transboundary River Commission. The report notes that the meeting was preceded by a seminar on the Convention and the IC intended to promote the Convention and the Committee (Doc. ECE/MP.WAT/IC/2, para. 4). It also notes that the Convention Secretariat reported on the first pilot reporting under the Convention, covering Sustainable Development Goal indicator 6.5.2; increased cooperation with international financial institutions in the framework of water and climate change was also reported, related to adaptation to climate change in transboundary basins (para. 6). The IC reported that no requests for advice or submissions had been received since its seventh session (1–2 December 2016 in Budapest); the same situation was also noted at the sixth meeting (3–4 May 2016 in Geneva). Other than on the IC’s own initiative, therefore, regarding the Irtysh River Basin in relation to the development activity in the upstream part of the basin that had been considered during the third, fourth, and fifth meetings, the mechanism had yet to be used to address compliance issues raised by the parties or the public (see Doc. ECE/MP.WAT/IC/2, para. 5). In response, the IC had prepared a letter to be sent to non-governmental organizations informing them of its existence and functions (Doc. ECE/MP.WAT/IC/2, para. 18). At the seventh session, the MOP also decided to establish a regular reporting mechanism and to launch a pilot reporting exercise in 2016–17 (Doc. ECE/MP/WAT/49/Add.2, Decision VII/2). It also adopted a template for reporting that was considered by the IC in the eighth meeting in 2017 (Doc. ECE/MP.WAT/IC/2, paras. 9–17). In relation to the Protocol’s CC, activity has also been rather limited to date, especially in contrast to that of the ACCC in respect of party/public communications. In regard to party communications, the only one to date was made in 2014, whereby the communicant alleged that Portugal was not in compliance with Articles 6 and 7 by failing to submit its summary report. In the case, Earthjustice, an environmental non-governmental organization, made a communication, but the concern to which the case related was also addressed by the CC itself, so consideration of the communication was closed (Doc. ECE/MP.WH/C.1/2015/4, para. 5). After completing its own determination, the CC decided that Portugal had failed to comply with Article 7 of the Protocol (Doc. ECE.MP.WH.CC.CI.1). There have been three cases considered under the Consultation Process: Albania, Azerbaijan, and Bosnia and Herzegovina (Docs. ECE/MP.WH/CC/CONS/1, 2, and 3, respectively). The advice provided to Albania was adopted by the CC on 11 January 2016. It concerned the institutional framework for the implementation of the Protocol, the content of the national summary report, and the process followed with respect to the latter. The advice provided to Azerbaijan was adopted on 12 January 2016 and concerned the national target setting process under the Protocol, the possible harmonization and revisions of the water and health-related legislation, and the preparation process for the national summary report. The advice provided to Bosnia and Herzegovina and adopted on 11 January 2016 concerned the institutional framework for the implementation of the Protocol. Two meetings of the CC were held in 2017, in March and November. Only the report from the March meeting was available at the time of writing. No submissions, referrals, or communications were received in advance of the meeting (Doc. ECE/MP.WH/C.1/2017/2, para. 5). The CC discussed follow-up actions after the fourth session of the MOP, in particular its note entitled: ‘Interpretation of the provisions of the Protocol on Water and Health related to transboundary waters,’ which was found to be helpful by the MOP (para. 7). The CC also discussed the experience with the Consultation Process that had been applied to the three parties noted above. In particular, ‘[t]he Committee considered that it would be useful to receive feedback from Albania, Azerbaijan and Bosnia and Herzegovina on the suitability of the process and its usefulness’ (para. 10). Based on this discussion, it considered whether to invite another small group of parties to take part in the Consultation Process: ‘Intersectoral coordination, public participation and the interaction between the requirements of the Protocol and European Union legislation in the field of water, sanitation and health were identified as the most relevant issues to be taken up in potential consultations’ (para. 11). In relation to reporting obligations, the CC noted that all parties had submitted their summary reports as part of the third exercise, concluding that no further action was needed given that the reports revealed no issues of concern (paras. 17 and 18). The status of target setting was also examined, and it was concluded that some parties had yet to establish national and/or local targets and associated dates. The Secretariat was requested to contact parties in breach to ensure targets were communicated, as well as to provide information on the target-setting process as appropriate (para. 19); it was decided that the information provided would be taken into account in the context of the consultation process (para. 20). Finally, promotion of the compliance procedure was emphasized as significant ‘in order to ensure that the information about the mechanism and its functions was easily available to the general public’ (para. 21). Ways of identifying relevant stakeholders were discussed, and it was agreed that a list of relevant organizations and events to assist with aware-raising efforts would be compiled (para. 22). © The Author(s) 2019. Published by Oxford University Press. All rights reserved. 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TI - C. Non-Compliance Procedures
JF - Yearbook of International Environmental Law
DO - 10.1093/yiel/yvy025
DA - 2017-01-01
UR - https://www.deepdyve.com/lp/oxford-university-press/c-non-compliance-procedures-JjvU7yPcfv
SP - 111
VL - 28
IS - 
DP - DeepDyve
ER -