COMPLIANCE

Importance

• Environmental integrity

• Credibility of the carbon market

• Transparency in actions of Parties

Key aspects

• Rule-based

• Demand for timely outcomes

• Final decisions

What is compliance

• Questions

• Commitments

• Rights

The Committee and Expert Review Teams

• ERT reports:– can trigger questions of implementation

(Section VI, para. 1) – can be considered when a request for

reinstatement of eligibility is made by the Party concerned (Section X, para 2)

• The Committee shall also receive other final reports of ERTs (Section VI, para 2)

The Committee

• Appellate nature

• Due process

• Timeliness

• Complementarities

The two branches work together

• Designation of one or more members of one branch to contribute to the work of the other branch

Section II, para. 7

• Referral of a question of implementation by the enforcement branch to the facilitative branch

Section IX, para. 12

• Use of information from the other branch as a basis for branch deliberations

Section VIII, para. 3(e)

Considerations

• Flexibility for EIT Parties

Section II, para. 11

• Common but differentiated responsibilitiesSection IV, para. 4

• Circumstances pertaining to the questions before it Section IV, para. 4

Timelines

• For FB – General rule: no fixed timelines– Exception: requirement to complete

preliminary examination within three weeks from receipt of the question of implementation (Section VII, para. 3)

• For EB – specific deadlines

Finality of Decisions

• All decisions of the facilitative branch are final and cannot be appealed (Section XI).

• All decisions of the enforcement branch are final and cannot be appealed, except for those related to Article 3.1 of the Protocol with respect to due process (Section XI)

The Committee and the COP/MOP

The COP/MOP:

– Considers appeals against a decision of the enforcement branch relating to Article 3.1 of the Protocol with respect to due process (Section XI)

– Provides general policy guidance (Section XII)

Compliance Procedures

Submissions

• ERT based

• Party with respect to itself

• Party with respect to another Party

• Referral

Agent

• “Agent” means the Head of State or Government, the Minister of Foreign Affairs, the diplomatic agent or another person duly authorized by the Head of State or Government or by the Minister of Foreign Affairs or, in the case of a regional economic integration organization, by the competent authority of that organization (Rule 2, para k).

Agent

Any submission or comment shall be signed by the agent of the Party and be delivered to the secretariat in hard copy and by electronic means. (Rule 18)

IGO and NGO Submissions

Following the preliminary examination, competent intergovernmental organizations and nongovernmental organizations that wish to submit relevant factual and technical information to the relevant branch shall do so in writing. (Rule 20)

Expert Advice

Each branch may seek expert advice (Section VIII, para. 5), e.g., when there is disagreement on whether to apply a correction or adjustment (Section X, para. 5)

Expert Advice

If a branch decides to seek expert advice, it shall:

(a) Define the question on which expert opinion is sought;

(b) Identify the experts to be consulted;

(c) Lay down the procedures to be followed.

Hearing (FB)In its request for a hearing, the Party concerned may identify:

(a) The issues that the Party proposes to raise and any documents that it intends to discuss during the hearing;

(b) Any individuals whose expert testimony or opinion it will present at the hearing. (Rule 25, para 1).

Consequences

The enforcement branch is responsible for applying– consequences set out in Section XV, including

suspension from the mechanisms

as well as – adjustments and corrections, as set out in

Section X, para. 5

Consequences

• The facilitative branch is responsible for applying the following consequences:

• All Parties: Advice and facilitation of assistance

regarding the implementation of the Protocol (Section XIV, para. (a))

• Annex B: Early warning for potential non-compliance (Section IV, para. 6)

Facilitative Branch• Developing Country Parties: Facilitation of financial and

technical assistance, including technology transfer and capacity building, taking into account Article 4, paragraph 3, 4 and 5, of the Convention (Section XIV, para. (c))

• EIT Parties: Facilitation of financial and technical assistance, including technology transfer and capacity building from sources other than those established under the Convention and the Protocol for the developing countries  (Section XIV, para. (b))

Final observations• The compliance mechanism seeks to promote compliance, solve

disagreements and provide credibility.

• The exercise of the compliance function involves a balance between political governance and judicialization.

• The balance can be viewed as a sharing of functions.

• There is no system of separate powers.

• Bodies interact with one another

• The Compliance Committee is not an independent court of law.

• The compliance function is subordinate to the political body.

For more information, visit

http://unfccc.int/kyoto_mechanisms/compliance/items/2875.php