2.1 Introduction
Populations around the world today are physically and economically interdependent. They share a global economy, they share supply chains, they share the global environment, they share the earth’s resources, they share the air that we breathe, they share contagious diseases and they share a reliance on nature’s well-being. In this world of shared interests, conceiving of implementation and compliance primarily through a dispute settlement lens has become more outdated than ever before. Dispute settlement machinery deals with often bilateral individual disputes, and it deals with them once they have crystallised, and often retrospectively. Even in multilateral settings, it is likely to be focussed on a relatively narrow range of issues identified by the litigants in light of their immediate and longer-term strategic interests. In contrast, today’s international problems increasingly require addressing ex ante, at times before major concerns become apparent. They call for dynamic processes that will review and re-review compliance. They correspond to a broad agenda calling for contemporaneous action by multiple Parties across multiple interrelated policy spheres. They require significant information flow, including scientific, technical and economic and social information.
Facilitative implementation and compliance processes like those found mainly in multilateral environmental agreements (MEAs) have the potential to help address this set of needs if we bring them into wider use across international law, and this chapter advocates their more widespread adoption in treaty regimes across diverse fields of international law. Provision for these processes should specifically be included in the expected treaty on pandemic preparedness and response, to which this chapter devotes its main attention, and the intended international legally binding instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ),Footnote 1 as well as the plastics pollution treaty presently under negotiation.Footnote 2
Frequently contrasted with formal international dispute settlement, such non-compliance mechanisms (NCMs) are generally characterised as providing a softer option. Indeed, a ‘new generation’Footnote 3 of MEAs, including the Paris Agreement,Footnote 4 the Rotterdam Convention on the Prior Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade as it now operatesFootnote 5 and the UNECE Convention on the Protection and Use of Transboundary Watercourses and International LakesFootnote 6 now leave aside the enforcement elements seen in the non-compliance arrangements under earlier regimes like the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol),Footnote 7 the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),Footnote 8 the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention)Footnote 9 and the Kyoto Protocol to the United Nations Framework Convention on Climate Change.Footnote 10 These ‘new generation’ regimes emphasise the practical facilitation of compliance, increasingly omitting sanctions for non-compliance and taking an explicitly non-confrontational approach.Footnote 11 The focus and the terminology being employed have both shifted towards implementation as well as compliance. We can arguably now talk of ‘implementation and compliance mechanisms’ rather than non-compliance mechanisms, but for simplicity the more general term ‘non-compliance mechanisms’ will continue to be used in this chapter.
Pursuing the argument that including facilitative NCMs in international pandemic law and beyond could help meet the needs of an increasingly interdependent world, this chapter is divided into four parts. The first part introduces the chapter. The second part considers the value that an NCM could add to the international law on pandemic preparedness and response. As negotiations for a new pandemic treaty progress, there are important opportunities to adopt machinery that will help ensure its better implementation. The third part investigates whether aspects of the facilitative compliance and accountability machinery in the Paris Agreement – as perhaps the most recent, sophisticated and universal of the NCMs in the various MEAs – could potentially be transferable to international pandemic law. While we have still to see the Paris Agreement’s compliance and accountability machinery in operation over time in order to evaluate its strengths and weaknesses, the Paris model provides much food for thought. It is not too early to suggest that reflections on the Paris model can helpfully inform negotiations on compliance in new instruments across other fields of international law.
The fourth part underpins these practical discussions with an investigation of developments in the theoretical basis for NCMs, explaining that, in today’s interdependent world, managerial and rationalist theories of compliance converge to support the adoption of facilitative implementation and compliance machinery. At the same time, facilitative implementation and compliance mechanisms will work in complement with the occasional exercise of international courts’ and tribunals’ jurisdiction and formal dispute settlement processes more generally. The chapter concludes with comments on associated questions of State responsibility as well as an update on relevant negotiations.
2.2 An NCM for International Pandemic Law?
International law on pandemic preparedness and response has not had a strong focus on the development of non-compliance machinery. Yet compliance with the central legal instrument, the International Health Regulations (IHR), is critical. The IHR concern matters including sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease. They were adopted by the World Health Assembly in 1969 under Article 21 of the WHO’s Constitution.Footnote 12 They are binding on WHO member States by virtue of Article 22 of the Constitution and were reviewed in 1983 following the eradication of smallpox and in 2005 after the defeat of the novel coronavirus SARS-CoV (Severe Acute Respiratory Syndrome).
The IHR 2005 revolve around a set of concrete requirements relating respectively to capacityFootnote 13 and to notification and information sharing.Footnote 14 As to capacity, the key provisions in Article 5 and Article 13 require States to develop, strengthen and maintain respectively the surveillance capacity to detect, assess, notify and report events; and the public health response capacity to respond promptly and effectively to public health risks and public health emergencies of international concern. The WHO is to assist on request.Footnote 15 Eight inferred core capacities are in the areas of national legislation, policy and financing; coordination and national focal point communications; surveillance; response; preparedness; risk communication; human resources and laboratory services.Footnote 16 As to notification, the IHR call for notification by a WHO member State to the WHO within twenty-four hours of assessment of public health information of any event which may constitute a public health emergency in its territory, as well as the response and support received.Footnote 17 Further provisions of the Regulations deal with matters including the declaration of public health emergencies of international concern, the WHO adoption of temporary and standing recommendations, measures to be taken at points of entry, travel and transport-related public health measures, travel documentation, charges, additional health measures, collaboration and assistance, and further matters relating to administration and review of the regulations.
Public debate on the IHR’s effectiveness has tended to focus on the emergency provisions, neglecting the underpinning significance of the capacity provisions and mechanisms to help ensure implementation.Footnote 18 The Review Committee on the Functioning of the International Health Regulations (2005) during the COVID-19 Response observed that the IHR 2005 ‘do not contain a clear mechanism to monitor compliance with the many obligations of WHO and States Parties’ other than a ‘static self-assessment report on core capacities’ and a WHO secretariat annual implementation report to the World Health Assembly.Footnote 19 Under Article 54(c) of the IHR 2005, States Party and the Director-General are to report to the Health Assembly on the implementation of these Regulations as decided by the Health Assembly.Footnote 20 Historically, Article 54 reports were required to align with the indicators, scoring system and topics found in the WHO’s 2010 IHR Core Capacity Monitoring Framework. However, since 2018 a self-scoring quantitative questionnaire has been used, known as the State Parties Self-Assessment Annual Reporting (SPAR) tool.Footnote 21 The number of States submitting annual reports has increased.Footnote 22 However, it has been argued that under the new model, the required content does not contribute effectively to identification of what is expected of States in terms of core capacities.Footnote 23 Furthermore, although the scores submitted by States in their reports may be made public, there is no subsequent critical review process.Footnote 24 Neither is there a clear adverse consequence in case of non-submission, late submission or incomplete reporting.Footnote 25 The processes used are evidently insufficiently focussed: ‘[t]hese reports, and the tools used to produce them, do not assess how well individual countries have performed on specific IHR functions and obligations.’Footnote 26
The annual reporting process is the main feature of the WHO’s 2016 IHR Monitoring and Evaluation Framework, also embracing three processes introduced in response to a call to move away from the self-evaluations on which Article 54 reports rely. These three processes are: voluntary joint external evaluations (JEEs); after-action reviews; and simulation exercises,Footnote 27 all of which remain voluntary. Figures published in 2021 suggest that 112 on-site JEE missions had taken place, 64 reviews following public health action under the IHR, and 128 simulation exercises.Footnote 28 Refined in 2018,Footnote 29 the JEE process involves a State’s preliminary self-assessment with subsequent on-site visits and reviews by a combined group of external and local experts.Footnote 30 Reliance within the JEE process on States’ self-assessment is considered a weakness of the JEE process.Footnote 31 States’ self-assessments are said to be an estimated 20 per cent higher than estimates of their capacity in JEE reports.Footnote 32 States’ agreement is required for the experts’ selection and methodology, and any publication of a JEE report.Footnote 33
COVID-19 revealed critical gaps in pandemic preparedness, including gaps in governance, subnational gaps and capacity, essential public health functions, such as diagnosis/testing, contact tracing and treatment capacities.Footnote 34 According to the data reported to the WHO by State Parties, as at 2021 the vast majority of countries still had low or moderate levels of national preparedness.Footnote 35 The Review Committee also found that weak capacities were reported for emergency preparedness and response at points of entry.Footnote 36 Confounding matters, IHR core capacities alone did not prove to be a good predictor of pandemic response in respect of COVID-19.Footnote 37 COVID-19’s magnitude and challenges overwhelmed many countries, including countries with high assessment scores.Footnote 38 There was ‘a significant disconnect between the actual and perceived levels of preparedness’.Footnote 39 Compliance problems had, though, previously been fully apparent. Too many countries had missed the five-year deadline for development of the requisite capacities, even with second extensions.Footnote 40 Reviews of the functioning of the IHR following past disease outbreaks including H1N1 and Ebola had provided relevant readings on the state of under-preparedness and the under-implementation of the IHR.Footnote 41 And, to be fair, two thirds of States’ own annual reports to the WHO indicated only a poor or modest preparedness, at a level of 1 to 3 out of 5.Footnote 42 Even with progress in the evaluation of core capacities from 2016 to 2018,Footnote 43 the compliance problem had attracted serious concern to the point where the WHO had identified protection from health emergencies as one of three strategic priority areas for the World Health Organization in the 2019–2023 period.Footnote 44
Strengthening the effectiveness and implementation of, and compliance with, the IHR 2005 is now a clear area of priority for all member States.Footnote 45 Improved compliance with the international law on pandemic preparedness and response is central to preventing fresh iterations of the experience with COVID-19, or worse, in the case of future emerging pandemics, and clearly requires greater attention. Initially a 2021 World Health Assembly mandate tasked the WHO Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (WGPR) to assess the benefits of developing such a convention, agreement or instrument on pandemic preparedness and response.Footnote 46 On 1 December 2021 the WHA established a new Intergovernmental Negotiating Body to work on the intended instrument, with the WHO secretariat tasked in March 2022 to prepare a draft text, in an open and inclusive manner. In parallel the WGPR continued to consider improvements to the IHR 2005. In July 2022 governments decided that the new instrument would be legally binding and would be adopted under Article 19 of the WHO Constitution. It has remained unclear whether improved compliance and implementation procedures will be elaborated in the context of the expected new instrument.Footnote 47 However, during the period this book was being produced, governments began to turn their attention more closely to this question.
The reports and reviews on which the intergovernmental negotiations and WGPR are drawing have addressed implementation and compliance in broad terms only. These reports and reviews have included reports of the Independent Global Preparedness Monitoring Board,Footnote 48 the WHO’s Review Committee on the functioning of the IHR 2005 during the COVID-19 Response,Footnote 49 the Independent Panel for Pandemic Preparedness and Response (IPPR)Footnote 50 and the WHO’s Independent Oversight Advisory Committee.Footnote 51
2.2.1 Proposals for Compliance Mechanisms
2.2.1.1 Global Preparedness Monitoring Board
The Global Preparedness Monitoring Board, an entity comprising political leaders, agency principals and experts co-convened by the Director-General of the World Health Organization and the President of the World Bank, emphasised the critical importance of strengthened independent monitoring to incentivise action and engender greater mutual accountability.Footnote 52 Independence is key; a monitoring body must be ‘autonomous, unconstrained by political, organizational, operational or financial considerations’.Footnote 53 Objectivity is essential, assessments must be evidence-based, transparent and independently verifiable.Footnote 54 For monitoring to generate accountability, assessments and recommendations must then be expected to lead to action.Footnote 55
2.2.1.2 Review Committee on the Functioning of the International Health Regulations (2005)
The Review Committee on the Functioning of the International Health Regulations (2005) convened by the WHO Director-General under the IHR to review the Regulations’ functioning during the COVID-19 Response recommended that the WHO ‘should continue to review and strengthen tools and processes for assessing, monitoring and reporting on core capacities, taking into consideration lessons learned from the current pandemic, including functional assessments, to allow for accurate analysis and dynamic adaptation of capacities at the national and subnational levels’.Footnote 56 Practical exercises may be necessary to gauge as well as to improve capacity and functioning. The Review Committee suggested that ‘[a] combination of static measurements of capacities scores, and dynamic assessments through external evaluations, simulation exercises and after-action reviews, were found to provide a more complete overview of both the existence and functionality of capacities’.Footnote 57 The Committee also recommended that ‘WHO should work with States Parties and relevant stakeholders to develop and implement a universal periodic review mechanism to assess, report on and improve compliance with IHR requirements, and ensure accountability for the IHR obligations, through a multisectoral and whole-of-government approach’.Footnote 58 The Committee noted that as it operated in the human rights arena, universal periodic review had helped foster intersectoral coordination, whole-of-government approaches and civil society engagement, as well as encouraging participation and good practices, with implementation of its recommendations linked to the Sustainable Development Goals and other government agendas.
2.2.1.3 Independent Oversight and Advisory Committee for the WHO Health Emergencies Programme
The Independent Oversight and Advisory Committee for the WHO Health Emergencies Programme was established in 2016 with an advisory and oversight function in respect of the WHO’s work in disease outbreaks and emergencies and necessarily has a collaborative relationship with the WHO secretariat. The Committee’s 2021 report iterated that the COVID-19 pandemic has exposed failings in pandemic preparedness and response across the world, with national and international systems struggling and health systems overwhelmed, highlighting shortcomings in the IHR 2005 and their application by member States and the WHO secretariat.Footnote 59 Stricter compliance with the IHR 2005, together with stronger international solidarity, was of the utmost importance in facing future pandemic threats.Footnote 60 The Committee aligned itself with the Review Committee’s recommendation to introduce a mechanism to foster whole-of-government accountability,Footnote 61 and sought a review by the secretariat of the existing tools and framework for national and international preparedness, including JEEs and national action plans. The Committee intends to keep this area of work under close review.Footnote 62
2.2.1.4 Independent Panel for Pandemic Preparedness and Response
The IPPR, co-chaired by Helen Clark and Ellen Johnson Sirleaf, was convened by the World Health Organization (WHO) Director-General in response to 2020 World Health Assembly (WHA) Resolution WHA73.1 to evaluate the world’s response to the COVID-19 pandemic. The IPPR’s Report (i) called for immediate action to alleviate the devastating reality of the COVID-19 pandemic, and (ii) set out a roadmap for fundamental transformation in the international system for pandemic preparedness and response.
Centrally for present purposes, the report recommended investment in preparedness now, and not when the next crisis hits, with critical accountability mechanisms to spur action. The report also recommended stronger leadership and better coordination at national, regional and international level, including a more focussed and independent WHO, a pandemic treaty and a senior Global Health Threats Council; an improved system for surveillance and alert at a speed that can combat viruses like SARS-CoV-2, and new authority for the WHO to publish information and dispatch expert missions immediately; a pre-negotiated platform for production and equitable distribution of vaccines, diagnostics, therapeutics and supplies; and access to financial resources as a vital investment in preparedness and for immediate availability at the onset of a potential pandemic.Footnote 63 Highlighting the failure to take pandemics seriously, the report emphasised that the world had attended insufficiently to accumulated warnings following the 2003 SARS epidemic, the 2009 H1N1 influenza pandemic, the 2014–2016 Ebola outbreak in West Africa, Zika and other disease outbreaks, including Middle East respiratory syndrome (MERS).Footnote 64 In the Report’s own words, the majority of pandemic preparedness and response recommendations had not been implemented.Footnote 65 National pandemic preparedness was vastly underfunded,Footnote 66 and too many national governments lacked solid preparedness plans and core public health capacities.Footnote 67
The Panel incorporated a central focus on the question of accountability, capacity building and access to finance in its section on leadership. In recommending that States establish a Global Health Threats Council, the Panel intended to secure high-level political leadership for pandemic preparedness and response, and ensure the subject would gain sustained attention.Footnote 68 This body would monitor progress towards the goals and targets to be set by the WHO, as well as against new scientific evidence and international legal frameworks, and report on a regular basis to the United Nations General Assembly and the WHA. Actors would be held accountable including through peer recognition and/or scrutiny and the publishing of analytical progress status reports.Footnote 69 This would operate in a context of coordinated leadership from the WHO, the International Monetary Fund (IMF), the World Bank and the United Nations Secretary-General, as well as regionally.Footnote 70
The Panel proposed incorporation of relevant pandemic considerations into existing instruments used by the IMF and World Bank, as well as the amalgamation of disaster risk reduction capacity building which has largely been separated from health sector pandemic preparedness efforts.Footnote 71 The Panel recommended further that the WHO set new and measurable targets and benchmarks for pandemic preparedness and response capacities against which all national governments should update their national preparedness plans within six months.Footnote 72 The Panel recommended formalising universal periodic peer reviews of national pandemic preparedness and response capacities against the WHO’s targets as a means of both accountability and learning between countries. The Panel suggested also that, as part of its regular consultation with member countries under Article IV of the IMF’s Articles of Agreement, the IMF should routinely include a pandemic preparedness assessment, including an evaluation of economic policy response plans. Five-yearly Pandemic Preparedness Assessment Programs should also be instituted in each member country, in the same spirit as the Financial Sector Assessment Programs, jointly conducted by the IMF and the World Bank.Footnote 73 Incentivising speedy action on outbreaks to reward early and precautionary response action will be key.Footnote 74
2.2.2 Evaluating the Proposals
An appropriate NCM supported by the secretariat of the WHO has the potential to add value to all the options contemplated above, helping bridge the gaps in the presently contemplated IHR 2005 compliance and implementation processes, and assisting the international community in meeting on an enduring basis the imperative need for robust pandemic preparedness and response. This would involve a shift away from viewing compliance as a matter of setting up a layer of ‘[i]ndependent monitoring, evaluation and oversight’,Footnote 75 to the expectation of a more engaged form of ongoing member State accountability. Although peer recognition, public scrutiny and transparency will be significant motivators for compliance, many of the proposed mechanisms are not closely enough focussed on an on-the-ground engagement with realities of public health and communications systems in each WHO member State. Prior experience suggests that such proposals are likely to remain insufficient, given the ongoing difficulties and wide gap between capacity required under the IHR 2005 and WHO member States’ actual capacity to deal with contagious disease outbreaks. The inter-linkage of implementation and compliance with questions of equity, finance and capacity building also calls for hands-on practical and informed country- and case-specific attention.
The proposed Global Health Threats Council also differs from an NCM in that it would be high level only, and the idea does not initially appear to have met with strong support from member States.Footnote 76 World Health Organization targets for achievement of core capacities would help reinforce resolve and political will. However, target-setting arguably needs to be accompanied by means of differentiating the challenges faced by different populations, communities and bureaucracies with a view to close-range analysis and assistance. The IPPR’s suggested IMF and World Bank procedures may serve as pragmatic planks for the development of pandemic preparedness and response capacity. Yet these are financial institutions. Although pandemic preparedness and response is a whole-of-government endeavour and economic concerns are central, there is a strong case that compliance machinery for aspects of pandemic preparedness and review relating directly to health systems should be housed in an institution experienced in health policy.
The idea of a universal periodic review (UPR) would go some way towards reinforcing compliance needs and identifying implementation gaps, but does not appear to offer the schematic complexity or focussed expert attention, support and communication that an NCM could bring to bear. The UPR model seen in the human rights field is set up to provide a review of all States’ fulfillment of human rights commitments once every four and a half years, through a series of three two-week periods annually where a State’s representatives are interviewed by other States’ representatives. This is combined with a country visit by experts from the roster of the Office of the High Commissioner for Human Rights. A working group proposes a set of recommendations and the State concerned then decides which recommendations merely to note and which to accept and implement.Footnote 77
Conceptually, the UPR seems in certain respects an unusual fit for pandemic preparedness law. The UPR concept brings with it overtones of the special sensitivity of States to potential criticism of their human rights records. Reflecting this orientation, the description of the UPR process on the website of the Office for the High Commissioner of Human Rights refers to it as ‘a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries’.Footnote 78 Yet, because pandemics affect all countries, and in such serious ways, it seems inappropriate to carry such a sensitivity over to the field of pandemic law. There is also the risk that the idea of a UPR, drawing inspiration from the human rights domain,Footnote 79 will reinforce the idea that the implementation of the IHR 2005 is essentially for the well-being of a State’s own citizens, even though in the context of contagious diseases, reviews of any one State are critical for all States. There are elements in common with Trade Policy Reviews in the World Trade Organization (WTO).
The adjusted denominator ‘Universal Health Preparedness Review’ (UHPR) has been employed to describe a pilot process in the WHO, for which WHO member States from all regions have expressed appreciation.Footnote 80 It will be interesting to see the results of the WHO UHPR which is described as involving a ‘Member State-driven intergovernmental consultative mechanism’ involving ‘volunteer and peer-to-peer’ (i.e., State-to-State) reviews of States’ preparedness capacities.Footnote 81 Even if States decide that a UHPR is the best way forward for helping ensure compliance with international pandemic law, it would be valuable to see the UHPR process evolve in ways that incorporate various of the independent, expert, tailored and facilitative elements of the type we see in the non-compliance machinery of the Paris Agreement and elsewhere.
The next section of this chapter examines the Paris Agreement model more closely, including features to consider for transfer to international pandemic law and beyond.
2.3 The Paris Agreement’s Compliance and Accountability Machinery as a Model for International Pandemic Law
The Paris Agreement is of a particular character in that participating States’ emissions reductions targets or Nationally Determined Contributions (NDCs) are self-specified. There is no obligation in the Paris Agreement compelling their realisation (although NDCs are subject to the Agreement’s requirements that each Party’s successive nationally determined contribution will represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition).Footnote 82 Accordingly the Paris Agreement’s accountability and compliance arrangements focus on a range of other administrative and procedural obligations and processes intended to help bring about the Agreement’s effective implementation.
Compliance with the Paris Agreement is encouraged through several overlapping mechanisms including: accountability in relation to NDCs, an enhanced transparency framework and the work of the Implementation and Compliance Committee. In addition, there is the Global Stocktake, and additionally the possibility of dispute settlement.Footnote 83 Communication, reporting and accounting requirements for NDCs are central.Footnote 84
The Enhanced Transparency Framework (ETF) is established under Article 13. The ETF involves compulsory submission of national greenhouse gas inventory reports (NIRs) and information necessary to track progress in implementing and achieving a Party’s NDC.Footnote 85 The transparency framework is to be implemented in a facilitative, non-intrusive, non-punitive manner, respectful of national sovereignty, avoiding placing an undue burden on the Parties.Footnote 86 Biennial transparency reports (BTRs) are expected, and NIRs may also be provided as stand-alone documents for developed countries reporting annually. For developed country Parties, the BTR must also contain information on finance provided and mobilised, as well as on technology transfer and capacity building for developing country Parties. Each report goes through an independent Technical Expert Review (TER). The Technical Expert teams review the consistency of the information submitted with requirements in the ETF’s Modalities, Procedures and Guidelines (Article 13 MPG).Footnote 87 The review also requires consideration of the Party’s implementation and achievement of its NDC, consideration of the Party’s support provided, identifying areas of improvement for the Party relating to the implementation of Article 13, and, for those developing country Parties that need it in the light of their capacities, assistance in identifying capacity-building needs.Footnote 88 A report is prepared containing recommendations with respect to these mandatory reporting requirements. The TER is followed by a Facilitated Multilateral Consideration of Progress (FMCP).Footnote 89 This is a plenary dialogue which involves a biennial question-and-answer session and then a working group session.Footnote 90
The Paris Agreement’s Implementation and Compliance Committee was established under Article 15(1) as part of a ‘mechanism to facilitate implementation of and promote compliance with the agreement’ and the Conference of the Parties to the UN Framework Convention on Climate Change (UNFCCC) serving as the Meeting of the Parties to the Paris Agreement (CMA) adopted the Committee’s rules of procedure in 2021Footnote 91 and 2022.Footnote 92 Article 15(2) specifies that the mechanism ‘shall consist of a committee that shall be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive’ and that the Committee is to pay particular attention to the Parties’ respective national capabilities and circumstances. The Committee is a standing body with geographically and politically representative composition. Its mandate is discrete from that of the other bodies and elements of the Paris Agreement’s overall accountability and compliance scheme previously discussed.Footnote 93 The Committee is to address individual Party’s performance within the parameters of the modalities and procedures (MP) adopted by the CMA in 2018 to guide the Committee’s work.Footnote 94
Consideration of a Party’s situation by the Committee may be initiated in three different ways depending on the issues of concern.Footnote 95 Firstly, as seen in many MEAs including the Montreal Protocol, a State may refer issues related to its own implementation or compliance to the Committee of its own motion.Footnote 96 Secondly, consideration of a Party’s situation by the Committee may be initiated automatically as a matter of course in certain types of situation where non-compliance is apparent on the face of the public record, as provided for under the Agreement in relation to a Party’s non-fulfillment of its obligation to communicate or maintain an NDC, its reporting obligationsFootnote 97 or non-participation in the FMCP.Footnote 98 Thirdly, with a Party’s consent, the Committee may deal with cases involving significant and persistent inconsistencies between the information a State has submitted within the ETF and Article 13 MPG.Footnote 99 Additionally, the Committee has a role, as seen in MEAs, including the Minamata Convention on MercuryFootnote 100 and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their DisposalFootnote 101 in identifying and making recommendations to the CMA on issues of a systemic nature, at its own initiative or on the request of the CMA.Footnote 102
The Committee is to constructively engage a Party at all stages, remaining in regular contact or making all efforts to do so.Footnote 103 The MP recognise several types of action that the Committee may take in order to help bring about a Party’s compliance with the Paris Agreement.Footnote 104 Firstly, the Committee may engage in a dialogue with the Party, to identify the challenges the Party is facing in implementing the Paris Agreement and make recommendations as well as share information on how to access support, thus acting as a ‘source of advice and assistance’.Footnote 105 Secondly, the Committee may assist the Party in its engagement with institutions that may be able to help meet its needs in relation to finance, technology and capacity building to help it better implement its obligations.Footnote 106 The Committee may make recommendations in this regard to the Party concerned, and communicate those recommendations to the relevant institutions. Thirdly, as in the case of compliance committees operating under other MEAs, the Committee may recommend a Party’s development of an action plan, providing assistance on request, and encourage a Party that has developed a plan to inform the Committee of its implementation progress.Footnote 107 Fourthly, in readily identifiable circumstances, the Committee may issue findings of fact regarding a Party’s non-participation in the FMCP,Footnote 108 or a Party’s non-submission of particular communications and reports.Footnote 109 These communications and reports comprise the communication (and maintenance) of an NDC,Footnote 110 NIRs,Footnote 111 information necessary for tracking progress in implementing and achieving NDCsFootnote 112 and, in the case of developed country Parties, information on support provided or mobilised to developing country Parties, as well as communication of finance to be provided (ex ante) to developing countries.Footnote 113
The Implementation and Compliance Committee’s work has to be considered in the context of the Paris Agreement’s accountability and compliance scheme as a whole. The Committee’s work complements the TER. The Committee provides a backstop in cases of repeated inaction, while the TER also performs aspects of a facilitative role. The FMCP that follows the TER process provides a plenary inter-State process enabling all States to take partial ownership of the drive for compliance. The Paris Agreement’s Global Stocktake, also mentioned, enables the efforts of all to be evaluated against appropriate benchmarks. Global Stocktakes will take place every five years, beginning in 2023, as a way to consider the combined, collective performance of all Parties. The Global Stocktake process collects and assesses technical information, leading to a discussion of the findings that will inform all Parties’ actions under the Agreement on an ongoing basis.Footnote 114
The value added to the Paris Agreement by its combined accountability and compliance arrangements is clear. They can be expected to make a significant difference to the Agreement’s implementation. Their standout features include the way they embrace global and technical processes, including with plenary participation, as well as Party-specific compliance committee processes involving a higher level of facilitative engagement. Parties to the Paris Agreement will be able to turn to the Implementation and Compliance Committee to gain access to increased assistance with implementation, and for support in the adoption and rollout of action plans where needed. The Committee’s power to make findings of fact will also be significant for formal transparency as well as constituting a partial sanction for certain of States’ implementation failures.
Like the Paris Agreement, the IHR 2005 represent a body of international law where interdependence is strong and coordinated regulation is essential. The regulatory and administrative actions taken by States to give effect to their commitments will be crucial. Yet in the WGPR there appears to be as yet an insufficient focus on how new compliance arrangements could assist with helping ensure the implementation of international law on pandemic preparedness and response ‘on the ground’.
In summary, what does the Paris Agreement model offer in relation to the development of compliance machinery for the IHR and potentially more widely? Of all the features of the Paris regime, aspects of the Implementation and Compliance Committee’s role may be the most valuable to consider for transfer, combined with an appropriate form of prior technical review like the FMCP, which has some similarities with the idea of universal periodic reviews already under discussion and trial in the WHO. The Implementation and Compliance Committee is an independent standing body mandated to take an objective perspective.Footnote 115 Concepts of dialogue, support and potentially ongoing processes underpin how the Committee will function. The CMA’s modalities and procedures specifically envisage this idea of dialogue,Footnote 116 in which there is an exchange of communications elucidating a Party’s situation and the challenges it faces. The Committee’s independent status and express mandate to make recommendations and to share information on how to access support is important, together with the capacity to recommend a Party develop an action plan and to assist with this on request, also looking at a Party’s progress under the plan where a Party accepts the Committee’s encouragement to keep the Committee informed.Footnote 117
The Committee’s power to make findings of fact is also potentially transferable, as is its systemic role, which could be valuable in the IHR 2005 and similar contexts to help identify needs for targeted multi-jurisdictional implementation assistance programmes. There is merit, too, in potentially transferring the global stocktaking notion to the IHR 2005, even taking into account that managing a diminishing planetary carbon budget is naturally different to preparations for preventing the international spread of diseases. Processes that will catalyse political motivation at the highest level have an important role to play.Footnote 118 Global stocktaking in the pandemic context could embrace both States’ individual domestic pandemic readiness and the extent to which countries have jointly engaged in the necessary level of planning for international co-operation on all aspects of disease outbreak and pandemic management.
An overarching difference remains between the Paris Agreement and many international agreements, including the IHR 2005: States’ substantive emissions reductions targets in the Paris Agreement are not binding and indeed are individually determined by States themselves. The Paris Agreement’s compliance and accountability machinery is oriented around ensuring implementation of the Parties’ reporting obligations, although there is also potential for a Party to seek the Implementation and Compliance Committee’s engagement when struggling to meet its NDC target. In contrast, the IHR 2005 set down the substantive capacity outcomes that Parties are to achieve. This is a case of a fixed floor. Retaining such binding substantive legal commitments in the IHR 2005 and elsewhere makes sense, on balance. However as indicated in the next section of this chapter, for facilitative implementation and compliance machinery to work effectively in such contexts it may need to be taken as written that States’ underperformance will be indulged while they continue to make appropriate progress towards better implementation, keeping the spectre of State responsibility at a distance.
2.4 Convergence in the Application of Managerial and Enforcement Theory
In addition to the practical considerations addressed in the previous part of this chapter, the extent to which States’ populations are now physically, economically and legally dependent on one another also strengthens the theoretical basis for more widespread facilitative implementation and compliance procedures.Footnote 119 In situations of intensified interdependence, the previously opposing managerial and rationalist theories of compliance converge to support reliance on facilitative compliance mechanisms. Rather than having to be forced to do so, it becomes increasingly rational for each State to change its conduct and comply as fully as possible with its international commitments. When a treaty addresses internationally shared regulatory and policy problems, it will be in a State’s own interests to comply thoroughly. Compliance by a State will directly reduce the threat posed to it, by reducing the scale of the problem. Compliance by a State will also indirectly reduce the threat posed to it because it will help induce compliance by others and encourage their full participation to protect internationally shared interests.
In sum, the world’s situation as contemplated by Abram Chayes and Antonia Handler Chayes’ seminal 1995 work on the managerial approach, The New Sovereignty,Footnote 120 has since moved on, into an era of intensified interdependence. Today, the reasons that States may do their best to comply with relevant obligations may include not only normative considerations such as their desire for good standing internationally as emphasised by the Chayes, but increasingly also a rational appreciation of their physical needs in an interdependent world. International compliance machinery employing a facilitative approach can assist States in meeting these combined goals.
2.4.1 Managerial Theory
The Chayes’ work in the 1990s captured vital insights into how compliance with international regulatory systems is effective when a ‘managerial’ model is adopted rather than an enforcement model. Consistent with the Chayes’ insights into the nature of implementation challenges in international regulatory systems, deficits in the implementation of the IHR 2005 are not, in general, caused by willful political decisions to go against States’ commitments but rather by insufficient capacity and prioritisation.Footnote 121 As the Chayes saw it, in these circumstances, the complaint that international legal regimes ‘have no teeth’Footnote 122 is likely to be misplaced; and an approach that seeks primarily to facilitate compliance rather than enforce it may be most productive.Footnote 123 Capacity is indeed the overarching problem in compliance with pandemic preparedness law, twinned with prioritisation issues.
Accompanying this insight is the understanding that levels of compliance and implementation will vary. In complex international regulatory systems, compliance is not an ‘on-off’ phenomenon; States’ conduct within a certain penumbra or zone will often be accepted as adequately conforming with their obligations.Footnote 124 Compliance and implementation become an activity to manage, or, from today’s perspective, to facilitate. What will keep treaty implementation and compliance at acceptable levels will be
For the most part, compliance strategies seek[ing] to remove obstacles, clarify issues, and convince parties to change their behaviour. The dominant approach is cooperative rather than adversarial. Instances of apparent non-compliance are treated as problems to be solved, rather than wrongs to be punished. In general, the method is verbal, interactive, and consensual.Footnote 125
Bringing about improved implementation and compliance will involve a series of measures and activities, usually starting with the data and its verification and then moving into more active management, identifying behaviour that raises significant compliance questions.Footnote 126 The process is initially exploratory, seeking to clarify the nature of the behaviour and surrounding facts and circumstances.Footnote 127 The next step in cases of persistent concern may be a diagnosis of the causes for non-implementation and non-compliance, and the aim here is to identify an obstacle that could be removed or solve problems standing in the way of implementation and compliance, such as capacity issues and the need for technical assistance or access to resources.Footnote 128 The process will be interactive.Footnote 129 This compliance and implementation model ties into the importance of justification and discourse as crucial elements in how international norms operate to control conduct, with questionable action to be explained and justified.Footnote 130 While the foundation of compliance remains the normative framework in the relevant treaty,Footnote 131 transparency is core.Footnote 132
All these elements of the Chayes’ theory have provided valuable insights for the design of NCMs. However, at the same time, the globe is in a fundamentally different position to that of twenty-five years ago. Populations’ increasingly shared physical dependence on the health of Earth’s planetary systems has become starkly apparent, and now successive novel diseases frequently crossing species from animals to humans, reveal our vulnerability also in terms of collective health. The application of managerial theory increasingly overlaps with the application of rationalist theory.
2.4.2 Rationalist Theory
Political economists, led by George Downs and others, have traditionally insisted on the importance of enforcement, emphasising a rationalist approach.Footnote 133 Enforcement rather than management is the key to compliance, they say, in situations where there are strong incentives to depart from compliance, where treaties require States to pursue conduct themselves differently from that they would have pursued in the absence of the treaty, and where deep co-operation is lacking. This may initially appear to be the case in respect of pandemic preparedness and response, climate change and also problems such as the management of biodiversity on the high seas. But additional, competing, rationalist considerations increasingly logically feed into States’ assessment of the degree to which they will comply with such bodies of law. In circumstances of vital physical interdependence like those in which the world now clearly finds itself, sanctions for non-compliance are to a degree inbuilt insofar as a Party’s non-compliance will leave that Party more exposed to the global threats now faced. Experiences with the COVID-19 pandemic and severe weather events are illustrative. Depending on the Party’s profile relative to the threat, the increased exposure may be greater or lesser. And each Party needs also to reckon with the question of whether its non-compliance will encourage others’ non-compliance, ratcheting up the threat. Contrastingly, a State that adopts a policy of close compliance with relevant international legal obligations will rationally derive a range of direct and indirect benefits. By modelling good conduct for others, it will help bring about better compliance and better results globally, as well as enhancing the State’s reputation and political influence in ongoing negotiations to address critical problems.Footnote 134
2.4.3 Convergence of the Theories
The realities on which the theory in The New Sovereignty was built have evolved to embrace circumstances of deepened global interdependence. At this point in history, it is becoming increasingly rational for States to comply as a matter of self-interest with treaties designed to address pressing problems of global interdependence like the problems we see in the areas of climate change, pandemic prevention and high seas biodiversity. This means that facilitative, non-punitive compliance machinery, or ‘new’ generation compliance machinery, has a stronger theoretical basis now than before. Non-compliance mechanisms increasingly take the form of ‘facilitated implementation and compliance’ as with the Paris Agreement.Footnote 135 Getting to this point has not been straightforward. The adoption of the reporting and review processes for all Parties to the Paris Agreement represented a significant shift, given the previous ongoing resistance of developing countries including China and India.Footnote 136 However, all this strengthens the case for States to consider transferring appropriately adapted elements of the Paris Agreement’s facilitative compliance scheme both to international pandemic law and beyond.
2.4.4 International Courts and Tribunals and Questions of State Responsibility
At the same time, international courts’ and tribunals’ (ICTs) role as avenues for possible formal dispute settlement also continues to be valuable.Footnote 137 Adjudication remains available, where there is jurisdiction, in respect of States’ general obligations under customary international law regarding the prevention of harm as well as in accordance with the dispute settlement provisions of applicable treaties. And adjudication may lead to sanctions including modes of collective enforcement.Footnote 138 Adjudication is clearly still on the ‘menu’,Footnote 139 though as a side rather than a main course. It is understood that the operation of facilitative compliance systems and multilateral review processes is unlikely to be enough all the time on its own to persuade powerful countries to comply with all of their commitments. Access to dispute settlement will remain important as a broader aspect of compliance schemes.Footnote 140
Further, ICTs’ contribution to the authoritative clarification of international law is helpful. This may take place in contentious or advisory proceedings. The expected International Court of JusticeFootnote 141 and International Tribunal for the Law of the SeaFootnote 142 advisory opinions on climate change are examples. The development of new advisory procedures within certain multilateral institutional frameworks, examples of which are discussed in later chapters of this book, are also a promising mechanism.Footnote 143 Such procedures may help bring about greater compliance by clarifying States’ or others’ obligations. In the meantime, traditional non-compliance procedures help to prevent breaches and harm in advance and ‘can be considered to work alongside and complement traditional dispute settlement processes rather than replace them’.Footnote 144 Today’s international legal regulatory problems should also be viewed in the broader context of reliance on ‘mosaic’ enforcement including through domestic administrative and judicial processes.Footnote 145 Flanking tools and principles may helpfully be brought to bear in all these contexts, including impact assessment, the precautionary principle and a dedication to greater equity within and across generations.
However, it is clear that NCMs have the potential to perform a special function in international law as it reconfigures itself in the course of the twenty-first century. They provide a shortcut to enhanced compliance in relation to the advancement or protection of shared international interests in an interdependent world. They are both less confrontational than inter-State procedures, and less beset by hurdles relating to standing. Where NCMs are relied on, the rules relating to the invocation of State responsibility move back-of-picture and the specific rules on initiation of non-compliance proceedings in the regime in question come to bear. There is no need to determine whether an individual State is an injured State or otherwise entitled to invoke the rules with which compliance is to be assessed and whether these rules are for instance obligations erga omnes partes. In this respect the advent of an era of greater reliance on NCMs would be an appropriate response to international law’s entwinement with increasing global interdependence.
What is the relationship, though, between the use of non-compliance procedures on the one hand and on the other hand dispute settlement in ICTs and State responsibility?Footnote 146 Generally it appears that the law on State responsibility will continue to apply where a State is not complying with its international obligations. Certain legal consequences attach including in respect of reparation to other affected States. And generally, it appears that it will remain open to States to go to international dispute settlement even while compliance procedures may be underway if there is an international court or tribunal with jurisdiction. States are slow to invoke the responsibility of other States and are even slower to seek formal international dispute settlement. But there is a palpable tension here. Non-compliance procedures in effect ask of States that they acknowledge their implementation of treaty commitments which leaves something to be desired, in order that this non-compliance machinery can be used to get help to these States so that they can achieve better implementation. So are States admitting to treaty breaches when they seek or receive help in the context of working with a compliance committee?
Martii Koskenniemi, who was with the Foreign Ministry of Finland at the time the Montreal Protocol negotiations took place, wrote then that non-compliance procedures could constitute specialised systems of State responsibility which would replace the general international law on State responsibility, in effect taking the question off the table for practical purposes.Footnote 147 But this feels unintuitive, because with the fuller range of NCMs now operating in international environmental law, we can see that it is possible there may be inbuilt limits on their reach and effect within each regime.Footnote 148 Scholars since have, in any event, tended not to endorse Koskenniemi’s view.Footnote 149
In closing, a few thoughts on the question of State responsibility are as follows. First, we should welcome the sense of flexibility-in-the-system that accompanies more widespread reliance on non-compliance machinery, and the indulgence of concerted efforts to improve implementation for the benefit of all in an interdependent world in which timely, preventive action to help protect shared interests is more valuable than remonstration post hoc. Second, given that non-compliance procedures will generally help address shared public interests, could we view the current situation as the blending of aspects of a more public or administrative law dimension into the international legal order, layering onto the more traditional, bilateral conceptions of international law as analogised with the private law of contract and tort?Footnote 150 Third, it may be possible to create semi-formalised safe zones around non-compliance processes, for instance agreeing clearly that the findings of compliance committees will not constitute the equivalent of res judicata or will be without prejudice to the findings made in any subsequent international dispute settlement proceedings. Fourth, we may find that States will be careful to try and ringfence the scope of the issues that they ask NCMs to address, although where issues are interlinked, there is likely always to be scope for a certain overlap with matters of State responsibility. States may be more comfortable if such committees are referred to as ‘implementation and compliance’ committees rather than NCMs. This allows scope for views that the improved conduct requested of States through such machinery may or may not relate to failed compliance attracting State responsibility. Depending on the circumstances it may be a matter only of improving States’ implementation of their obligations.
2.5 Conclusion
A world in which international law continues to grapple with the prevention of some of the greatest threats humanity has known to date is a world in which facilitative compliance linked with targeted support and capacity building must surely play a central role. Compliance machinery needs to be built on a supportive but serious ethos, enabling a well-informed and realistic approach, and taking into account the limitations of actors in situations where compliance is a challenge and equity an important consideration. Negotiating governments should consider the Paris Agreement’s compliance machinery (and the accumulated practice of reliance on NCMs under MEAs), when they consider the types of mechanism that could be put in place to help improve compliance with various relevant bodies of international law.
In international pandemic law and in other international legal contexts, States could do well to consider the way in which Paris Agreement-style accountability and compliance arrangements need to go beyond declaratory processes presenting States’ progress and involve independent, expert engagement with individual States’ implementation needs, including taking concrete steps to assist with requests for resources, capacity and remedial planning. These are crucial factors that will need to be seriously considered for introduction into implementation and compliance procedures if international law on pandemic prevention preparedness and response is to be sufficiently effective.
At the time this chapter was initially drafted, in January 2022, and informally circulated, negotiations on both the intended treaty on pandemic preparedness and response and on the BBNJ instrument were mid-stream. As part of its participation in the pandemic treaty negotiations, New Zealand put forward the suggestion in April 2022 that the Paris Agreement could be used as a model for non-compliance procedures under the new treaty.Footnote 151 At the same time, the text of the expected BBNJ instrument was also evolving. Initially it was envisaged simply that the BBNJ agreement’s Conference of the Parties might in due course adopt co-operative procedures and institutional mechanisms to promote compliance and address cases of non-compliance.Footnote 152 This text was itself in square brackets and at least one delegation (the United States) requested its deletion.Footnote 153 Nevertheless, the President of the negotiations, Ambassador Rena Lee of Singapore, retained the provision in the draft text, produced in July 2022, adding as an alternative a more extended five-paragraph compliance provision which would establish a compliance committee based closely in part on the Paris Agreement.Footnote 154 At the negotiations in August 2022 in New York, where New Zealand chaired the talks on the compliance issue, States refined this provision.Footnote 155
The non-compliance provision in the BBNJ text is likely to be of particular value within the BBNJ regime because the instrument’s practical effect will depend closely on compliance with procedural obligations, including commitments on information flow. Equity and environmental protection can best be assured with the necessary transparency and accountability, whether this be in the accessing of marine genetic resources or the conduct of appropriate environmental impact assessment in zones abutting the Area. An appropriate NCM will complement existing law of the sea dispute settlement machinery, facilitating provision of assistance to States who may be facing technical and political implementation challenges and enabling the international community to better protect populations’ mutually important interests for the long term. Inclusion of an appropriate NCM in the new pandemic treaty instrument, and in the negotiations for the new international legally binding instrument on plastic pollution, would be a similarly valuable step. Governments must be prompted more actively to ensure they adopt appropriate NCMs, sooner rather than later, in all relevant spheres.
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