Technical and financial assistance and compliance: the interplay

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Book Chapter

Reference

Technical and financial assistance and compliance: the interplay

BOISSON DE CHAZOURNES, Laurence

BOISSON DE CHAZOURNES, Laurence. Technical and financial assistance and compliance:

the interplay. In: Ulrich Beyerlin, Peter-Tobias Stoll & Rüdiger Wolfrum. Ensuring compliance with multilateral environmental agreements : dialogue between practitioners and academia . Leiden : Martinus Nijhoff Publishers, 2006. p. 273-300

Available at:

http://archive-ouverte.unige.ch/unige:13073

Disclaimer: layout of this document may differ from the published version.

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Technical and Financial Assistance and Compliance: the Jnterplay

Laurence Boisson de Chazournes·

J. Introduction

The conclusion of multilateral environ mental agreements (MEAs) is one of the greatest achievements of the past few decades in the field of international environmental law. Vet, what remains ta be fully ascertained is Ihe degree of compliance with them, in particular when such agreements are likely not only ta affect the environmental but also the economic policies of the States Parties. In recent years, at the regional as weil as at the global level, there have been several attempts 10 identify the reasons for non-compliance with international environmental obligations.!

In the debate on which means are best suited for inducing compliaoce with environmental treaty obligations,2 one can distinguish Iwo categories of

•

2

Professor and Head of the Department of Public International Law and Interna- tional Organization, Law Faculty, University of Geneva, Switzerland. The au- thOT would like to thank Ms. Mara Tignino and MT. Danio Campanelli, Assis- tants at tbe Department of Public International Law and International Organiza- tian, for their help in the preparation of this contribution.

The Guidelines adopted by Goveming Couneil of the United Nations Environ- ment PTogramme (UNEP) and those adopted by the Firth Ministerial Confer- ence of the United Nations Economie Commission for Europe show the growing awareness of the necd to strengthen eomplianee with MEAs. These instruments attempt ta develop strategies and palicies for preventing non-œmplianee with environmental treaties. See Guidelines for Strengthening Complianee with and Implementation of Multilateral Environmental AgTeements (MEAs) in the ECE Region, Firth Ministerial Conference "Environrnent fOT Europe", Doc.

ECE/CEPIl07, Kiev 21-23 May 2003, available at: http://www.uneee.oTg;

UNEP's Guidelines on Compliance with and Enforcement of Multilateral Envi- Tonmental Agreements, UNEP Goveming Council, Seventh Special Session, UNEP/GCSSNII/4, Cartagena, 13-15 February 2002, available al:

http://www.unep.oTg. See also: Organization for Economie Co-operation and Development, Guiding Principles fOT Reform of Environmental EnfoTcement Authorities in Transition Economies of Eastern Europe, Caucasus and Central Asia,7 Oetober 2002, Almaty, Kazakhstan, available at: http://www.oeed.oTg.

This contribution will focus on complianee with treaty obligations.

Ulrich Beyerlin, Peler-Tobias Stoll, Rüdiger Wolfrum (Eds.), Ensuring Compliance wilh Mu/- ti/ateral Environmental Agreement.ç; Academie Analysis and Views from Practice, © 2006 Koninklijke Brill NV. Prin/ed in The Netherlands, pp. 273-300

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274 LAURENCE BOISSON DE CHAZOURNES

instruments, the so-cal\ed "hard" instruments category and the "soft" instruments category. While the "hard" instruments are mostly unilateral in nature and coercive in their finality,3 the "soft" instruments are incentive in nature and consent-based. They may consist in capacity-building, technology transfers or the provision of financial assistance measures, the latter including loans, credits and grants. "Soft" instruments are also often self- implementing, which means that no specifie enforcement action is required.

"Soft" instruments are most often used to induce compliance from specifie categories of countries that cannot afford to put in place al\ the measures needed to secure the proper implementation of an international convention.

The provision of sorne form of financial and technical assistance to developing countries⁴to secure their compliance has in fact become a common feature ofmany international treaties, especial\y in the field of environment.⁵

International organizations have become major channels for providing financial and technical assistance to developing countries. Several international organizations, such as the World Health Organization (WHO), the Food and Agriculture Organization (FAO), and the World Meteorological Organization (WMO), have the provision of technical assistance as one of their main activities. Another example is the International Atomic Energy Agency (IAEA) which provides technical assistance for the peaceful use of nuclear energy. International financial institutions such as the World Bank (WB) are major providers of financial and technical assistance through their lending activities.⁶

Financial and technical assistance for promoting compliance with treaty obligations has several facets: it can be provided in specifie circumstances

3

4

5

6

For example, Art. 60 of the Vienna Convention on the Law of Treaties opens the possibility for an injured State Party to tenninate or suspend a treaty which has been breached via another State Party having violated its legal obligations vis-à-vis the tirst State party or even in respect of ail States Parties. On whether this option can be considered adequate to enforce environmental treaty obliga- tions, see: R. Wolfium, Means of Ensuring Compliance with and Enforcerncnt oflntemational Environmental Law, Recueil des cours, vo1.272 (1998), pp. 56- 57.

For the purposes of this contribution, the tenn "developing countries", also in- cludes least developed countries and countries with economies in transition.

In otheT areas of intemationallaw such as human rights, the provision of techni- cal and tinancial assistance also has a long-standing tradition. See: P. Sand, "In- stitution-Building to Assist Cornpliance with International Environrnental Law:

Perspectives", ZAORV, vo1.56 (1996), pp. 780-781.

See M. A. Bekhechi, "Sorne Observations regarding Environrnental Covenants and Conditionalities in World Bank Lending Activities", Max Planck Yearbook alUN Law, vo1.3 (1999), 289-314.

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TECHNICAL AND FINANCIAL ASSISTANCE 275

such as sea incidents ⁷or nuclear emergencies,8 through specifie funds, as for example the World Heritage Convention⁹ or the Ramsar Small Grants Fund. ID Il may explicitly be made part of the legal obligations of developed countries, there being an expression of the principle of common but differentiated responsibilities. 1 1 or it may be an expression of the obligation to cooperate. The Montreal Protocol, the Convention on Biologieal Diversity and the Convention on Climate Change have shaped this commitrnent as a

"compliance requirement": it is explicitly recognized that the extent to whieh developing country Parties will effectively implement their treaty obligations depends on the effective implementation by developed Parties of their commitments to provide financial resources and technology.12

Promotion of compliance with environmental treaty obligations presents itself as a multi-step process whereby finaneial and technical assistance plays a role at eaeh step. States are asked to develop national polieies and

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For instance, under the 1990IMO Convention on Oil Pollution Preparedness, Response and Co-operation, in case of pollution incidents at sea, States "under- take, individually or jointly, to take ail appropriate measures" in accordance with their capabilities and the availability of relevant resources. The assistance provided by Parties should have as objectives: "to train personnel; to ensure the availability of relevant technology, equipment and facilities; to facilitate other measures and arrangements; and to prepare for and respond to oit pollution inci- dents; and to initiate joint research and development programmes." IMO Con- vention on Oil Pollution Preparedness, Response and Co-operation, 30 !LM (1990),733, Arts. 1 (1),7 (1).

Convention on Assistance in Cases of Nuc/ear Accident or Radiological Emer- gency, 221LM(l986) 1377, Art.2.6.

Convention concerning the Protection of the World Cultural and Natural Heri- tage, Il lLM(1972), 1358, Art.15.

10 See Resolution 4.3, Conference of Parties to the Ramsar Convention, 1990 and Resolution VI.6, Conference of Parties to the Ramsar Convention, 1996.

Il Principle 7 of the Rio Declaration reads as follows: "States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integ- rit y of the Earth's ecosystem. In view of the dilIerent contributions to global en- vironmental degradation, States have common but differentiated responsibilities.

The developed countries acknowledge the responsibility that they bear in the in- ternational pursuit of sustainable development in view of the pressures their so- cieties place on the global environment and of the technologies and financial resources they command."

12 Montreal Protocol ta the 1985 Vienna Convention on Substances that Deplete the Ozone Layer, 261LM (1987), 1541, Art.5 (5); United Nations Convention on Biological Diversity 31 ILM(1992) 822, Art.20 (4); United Nations Framework Convention on Climate Change 31 !LM (1992),849, Art.4 (4).

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276 LAURENCE BoISSON DE CHAZOURNES

legislation in accordance with treaty obligations. \3 They also have to submit reports or communications contaioing data and information to monitoring bodies. Yet, developing countries may lack the technical and financial capabilities to achieve these objectives. In order to develop national legislation and to report 00 measures taken to implement treaty commitments, technical advice and financial assistance may be of crucial importance. 14

The process for ensuring compliance with international obligations also includes the development of strategies and procedures targeted at dealing with issues of non-compliance with treaty obligations.l⁵Ensuring appropri-

13 For instance under the Biodiversity Convention, States Parties are requested to take national measures in arder to comply with its aims. Art. Il requires that

"Each Contracting Party shall, as far as possible and as appropriate, adopt eco- nomically and socially sound measures that act as incentives for the conserva- tion and sustainable use of componcnts of biologic.1 diversity". The text of the Convention does not provide guidance concerning what these incentives might or should he. Several decisions of the Conference of the Parties do .ttempt to clarify the meanjng of the tenn "incentÎves". B;odiversity Convention, Confer- ence of the Parties, Decision V/15, UNEP/CBD/COP/5123; Decision V11I5, UNEP/CBD/COP/6120; Decision VlI/18, UNEP/CBD/COPI7I21. According to Decision VIIl5, the purpose of ineentive measures "is to change institution.1 and individu.1 beh.viour" in order to achieve the objectives of the Convention on Biological Diversity. The Conference of Parties also encouraged parties to review "their existing legislation and economic policies of biological diversity iota policies, programmes, national accounting systems and investment strat- egy". Biodiversity Convention, Conference of the Parties Decision V1/15, UNEP/CBD/COP/6120.

14 See A. Chayes/A.H. ChayesIR.B. Mitchell, "Managing Compliance: Compara- tive Perspective", in E. Brown WeisslH.K. Jacobson, Engaging Countries, Strengthening Compliance with International Environmental Accords, MIT Press, Cambridge, (1998), pp. 52-53.

15 See Montreal Protocol ta the J 985 Vienna Convention on Substances that De- piete the Ozone Layer, Annex IV and V, Report of the Fourth Meeting of the Parties (1992), UNEP/OzL.Pro.4/15; Annex li, Report of the Tenth Meeting of the Parties (1998), UNEP/OzL.Pro.10/9. Protocol on Further Reduction of Sul- phur Emissions to the Convention on Long-Range Transboundary A ir Pollution;

Decision 1997/2, Report of the Fifteenth Session of the Executive Body (1997), ECElEB.AlRl53. Basel Convention on the Transboundary Movement of Haz- ardous Wastes and Their Disposai, Decision VI/12, Report of the Sixth Confer- ence of the Parties (2002), UNEP/CHW.6/9. Kyoto Protocol to the Climate Change Convention, Decision 24/CP.7, Report of the Seventh Conference of the Parties (2001), FCCC/CP/2001/13/Add.3. Aarhus Convention on Access to In- formation, Public Participation in Decision-Making and Access to Justice in Environmental Mat/ers, Decision 1/7, Report of the First Meeting of the Parties (2002), ECEIMP.PP/21 Add.8.

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TECHNICAL AND FlNANCIAL ASSISTANCE 277

ate responses to non-compliance is part of whal bas been termed "active treaty management". 16 The objective of such procedures and mechanisms is to facilitate, promote and enforee compliance with the commitments under environmental treaties. Contrary to traditional dispute settlement mecha- nisms, these non-compliance strategies and procedures have a "pmdtive" na- ture in the sense that they are primarily aimed at ensuring the continuing participation of all States for achieving the corn mon goals as detined in the environmental agreements. Non-compliance procedures primarily place em- phasis on prevention and restoration and may provide technical and financial assistance to this end.

The distinction between ex anle assistance aimed al inducing compliance with environmental treaties and ex post assistance should be noted. Ex post assistance finds its application in the event of non-compliance. Moreover, the specifie non-compliance procedures outlined above that have becn developed in the environmental area do not exclude the role played by traditional dispute settlement mechanisms. In this context, it is interesting to note the interplay between traditional dispute settlement mechanisms and technical and tinancial assistance. Financial and technical assistance rnay be provided to developing countries in order to encourage these States to take recourse to an international dispute settlement body or to provide them with support in the course of dispute settlement proceedings or for the execution of a judicial decision.

II. Technical and Financial Assistance as Means for Inducing Compliance

There are several ways in which the provision of technical and tinancial assistance plays a role as an ex ante means for inducing compliance. Treaties dealing with oil pollution provide one such example. They require States to cooperate, in accordance with their capabilities, in assisting countries dealing with emergencies at sea. At the global and regional level, several conven-

16 See A. Chayes/A.H. Chayes, The New Sovereignty. Compliance with Regula/ory Agreements. Harvard University Press, Cambridge, 1995, pp. 197-228. Sec also:

L. Boisson de Chazoumes "La mise en oeuvre du droit international dans le domaine de la protection de J'environnement: enjeux et défis", Revue générale de droit international pl/blic, (1995) No. l, pp. 37-77. M. Fitzmaurice/C. Redg- well "Environmental Non-Compliance Procedures and International Law", Netherlands Yearbook of International Law (2000) vol. XXXI, pp. 35-65.

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278 LAURENCE BOISSON DE CHAZOURNES

tions commit parties to respond to requests for assistance from States likely to be affected by pollution incidents and emergencies at sea. 17

International or regional organizations play an important role in coordi- nating and facilitating cooperation. Such is the case with technical assistance to States faced with major oil pollution incidents at sea. For instance, under the 1990 Convention on Oil Pollution Preparedness, Response and Co- operation, parties have designated the International Maritime Organization (IMO) "to facilitate the provision of technical assistance and advice, upon the request of States faced with major oil pollution incidents."18 The IMO's role under this Convention is comparable to that played by the IAEA under the 1987 Convention on Assistance in Cases of Nuclear Accident or Radio- logical Emergencyl9

Other treaties may provide for other forms of assistance. For example, in the area of the management of hazardous wastes, the establishment of regional or sub-regional centres for training and technology transfers aims at providing the adequate technical capabilities for ensuring compliance with environmental treaties.^2o

1. Specifie Funds: the World Heritage Fund and the Ramsar Small Grants Fund

Several treaties have also established specific funding rnechanisms to help to achieve their purposes. For instance, un der the World Heritage Convention

17 The 1982 Convention on the Law of the Sea (UNCLOS) explicitly requires States to cooperate, in accordance with their capabi1ities in eliminating the ef- fects of pollution. See United Nations Convention on the Law of the Sea, 21 ILM (1984), 1261, Art. 199. See also Helsinki Convention on the Protection of the Marine Environmenl of the Baltic Sea, Annex VII, \3 ILM (1974), p. 546.

18 IMO Convention on Oil Pollution Preparedness, Response and Co-operation, Art.12.

19 Convention on Assistance in Cases of Nuc/ear Accident or Radiologica/ Emer- gency, 22ILM(l986) 1377, Art. 2 (6). On the issue see, P. Bimie/A. Boyle, In- ternational Law & The Environment, Oxford University Press, 2002, pp. 471- 472.

20 Base! Convention on the Transboundary Movement of Hazardous Wastes and Their Disposai, 28 ILM (1989) 657, Art. 14. See also Rotterdam Convention on the Priar If?formed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 40 ILM (2001), 532, Art. 16 and Stockholm Convention on Persistent Organic Pollutants, 32ILM (2001) 1069, Arts. 12-13.

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TECHNICAL AND FINANCIAL ASSISTANCE 279

States parties may request assistance from the World Heritage Fund ²¹ for property forming part of the cultural or natural heritage of outstanding uni- versai value situated within ils territory. The provision of assistance may take several forms. ^Itmay consist of:

1. sludies concerning the artislic, scientific and technical problems rai,ed by the protection, conservation, presentation and rehabilitation of the cultural and natural heritage, as defined under the terms of the Convention;

2. provision of experts, technicians and skilled labour to ensure that the approved work is correctly carried out;

3.training of staff and specialists at ail level, in the field of identification, protection, conservation, presentation and rehabilitation of the cultural and natural heritage;

4. supply of equipment which the Slate concerned doe, not possess or is not in a position to acquire;

5. low-interest or inlerest-free loans which might be repayable on a long- term basis;

6. the granting, in exceptional cases and for special reasons, of non- repayable subsidies²²

Another specifie funding mechanism is the Ramsar Small Grants Fund, which supports wetland conservation activities. States Parties to the Ramsar Convention on Wetlands²³ as weil as countries seeking to accede to this convention may ask for a grant to support activities necessary for the identification, delineation, and mapping ofa site 10 be included on the List ofWet- lands of International Importance.²⁴

Contributions under these funding mechanisms are mixed; sorne are voluntary, while others are obligatory, making it difficult to determine the legal nature of the technical and financial assistance. In international practice, and in particular within a treaty framework, the legal nature of the assistance often evolves: as States grow to rely on voluntary contributions, those contributions may take on the character of legal obligations. States relying on the

21 See Convention concerning the Protection of World Cultural and Natural Heri- tage, 12ILM(1973) 1085, Art. 15.

22 World Heritage Convention, Art. 22.

23 Ramsar Convention on Wetlands, 36 ILM (1997),719.

24 Ramsar Small Grants Fundfor Wetland Conservation Wise Use (SGF), Opera- tional Guidelines for the Triennium 2003-2005 at, http://www.ram.ar.orglkey _ sgf ..zuide _ 2004_ e.doc.

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contributions develop a legal entillement to them and contributing States must then provide assistance due to the obligation of cooperation²⁵

2. Provision of Financial and Technical Assistance as a Legal Obligation

Agreements such as the World Heritage Convention and the Ramsar Con- vention provide for financial and technical assistance for improving States' compliance. Yet they differ from the Montreal Protocol, the Convention on Biodiversity and the Convention on Climate Change. In the context of the latter, developed countries have an obligation to provide financial and technical assistance to developing countries. In application of the principle of common but differentiated responsibilities, compliance assistance through technical and financial assistance is foreseen as a Icgal obligation of developed countries in the context of these conventions and more generally for protecting the global environment.²⁶The philosophy underlying these provisions on rmancial and technical assistance is the so-called "common concem approach"27 Equity also plays a role since the principle of common but differentiated responsibilities requires taking into account the needs and differentiated capabilities of developing countries as compared to indllstrialized countries, while at the same time reminding the Parties that ail States share

"common responsibilities" for the protection of the environment to the bene- fit of present and future generations.

The Montreal Protocol was the first MEA to explicilly state the link between the compliance of developing countries and provision of financial assistance and transfer of technology. To this end, the Protocol provides for the establishment of the Multilateral Fund, which is fundcd by developcd COlln- tries, to "meet ail agreed incremental costs of [developing countries

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Parties in order to enable their compliance with the control measures".28 The notion of "agreed incremental costs" implies that the Multilateral Fund's financial obligation is not open-ended. Incrementai costs include "cost of conversion

25 See M. Bothe "Legal and Non-Legal Norms -A Meaningful Distinction in In- ternational Relations?", Nether/ands Yearbook of lmernationa/ Law, voU 1, 1980, p. 85.

26 See Montrea/ Protocol Arts. 5 and 10; Climate Change Convention, Art. 3;

Kyoto Protocol ta the Climate Change Convention, Art. 10; Convention on Bio- /ogica/ Diversity, Arts. 16-20; Convention ta Combat Desertification, 33 [LM (1994) 1328, Arts.16-20.

27 R. Wolfrum, supra note 3, p. 112.

28 Montreal Protocol, Art. 10 (1).

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TECHNICAL AND FINANCIAL ASSISTANCE 281

of existing production facilities", "cost of establishing new production facilities for substitutes of capacity equivalent to capacity lost when plants are converted or scrapped, including: cost of patents and designs and incremental cost of royalties; capital cost; cost of training, as weil as the cost of research to adapt technology to local circumstances"29

A comparable system exists under the Climate Change Convention and the Biodiversity Convention. Both agreements contain similar provisions to finance capacity-building activities in developing countries. Under these agreem~nts the role of the Global Environmental Facility (GEF),30 which is the major international mechanism for financing global environmental efforts with a view to assist States Parties in complying with the obligations set forth in several environmental conventions, should be underscored. In particular, the GEF has been designated to act as the tinancial mechanism under Article II of the Climate Change Convention,31 Article II of the Kyoto Pro-

29 Montreal Protoeol, Report of the Fourth Meeting of the Parties. Annex VIII

"Indicative List of Categories oflncremental Costs", UNEP/OzL.ProAI15.

JO The GEF was established through a Resolution adopted by the Executive Direc- tors of the World Bank in 1991 (World Bank, Resolution No.91-5, 1991). As of April 1992, the States participating in the GEF agreed to undertake a revision of this mechanism, which was initially established for a three-year pilot phase. The restructuring of the Fund was considered a key item in the preparations for the Rio Summit as weB as in the course of the negotiations of Convention on Cli- mate Change and the Convention on Biological Diversity. Developing countries affirmed the need of restructuring the GEF in accordance with princip les of universality, transparency, and democracy. Agenda 21 in its Chapter 33 endorsed such concems affirming that the restructured GEF "should encourage universal participation", it should ensure "a govemance that is transparent and democratic in nature, including in terms of decision-making and operations, by guarantee- ing a balanced and equitable representation of the interests of developing countries and giving due weight to the funding efforts of donor countries", and it should also ensure "predictability in the flow of funds by contributions from de- veloped countries, taking into account the importance of equitable burden- sharing." (Chapter 33.14, Agenda 21). A new instrument was thus adopted by the three implementing agencies, narnely the World Bank, the UNDP and the UNEP, in March 1994. See Instrument for the Establishment of the Restruetured Global Environment Faeility, 7 July 1994. See also Instrument for the Estab- lishment of the Restruetured Global Environment Facility, 19 June 2003 (with amendments), at www.gefweb.orgl.OntheGEFsee:L.Boisson de Chazoumes, The Global Environment Facility as a Pioneering Institution. Lessons Learned 31

and Looking Ahead, GEF Working Paper 19, November 2003.

Climate Change Convention, Report of the Second Conference of the Parties, Decision W12: Memorandum of Understanding between the Conference of the Parties and the GEF Council, (1996), FCCCICPJl996/9.

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tocol and Article 21 of the Biological Diversity Convention³²Following the growing environmental concems regarding desertitication and the pollution caused by persistent organic pollutants, the 1994 GEF Instrument has been amended.³³By virtue of this amendment, the GEF also became the tinancial mechanism of the Convention to Combat Desertitication^J4and of the Stock- holm Convention on Persistent Organic Pollutants³⁵

Under these agreements the provision of technical and tinancial assistance is recognized as a means to strengthen the capacity of developing countries to comply with their treaty obligations. It is conceived as an in- ducement towards this end.

The agreements also state that the obligation of developing countries to comply with treaty obligations "will depend upon" the implementation by developed countries of the provision of tinancial cooperation and transfer of technology. Compliance in this context is looked upon from the angle of developed countries' behaviour. In particular, under the Montreal Protocol if the provision of technical and tinancial assistance does not work effectively, developing States may refer the matter to the Meeting of the Parties, which must decide on appropriate action. 36 Developmg States are thus given the power to put pressure on developed States to ensure that they have the necessary means to meet their commitments.

ln contrast to the Montreal Protocol, the Climate Change Convention, the Kyoto Protocol and the Biodiversity Convention, the Convention to Combat Desertitication contains lesser commitments from developed countries. This approach is likely due to the faet that desertifieation has often been considered as a regional problem affecting only sorne States³⁷However, the reeent

32 Biodiversity Convention, Report of the Third Conference of the Parties, Deci- sion IIII8: Memorandum of Underst.mding between the Conference of the Par- ties and the Council of the Global Environment Facility, (1997), UNEP/CBD/COP/3/38.

33 lnstrumentfor the Esrablishment of the Restmctured Global Environment Facil- ity, 19 June 2003.

34 Convention to Combat Desertification, Art. 20. See a[so Convention to Combat Desertification, Report of the Sixth Conference of the Parties, Decision VI/6, 2003,ICCD/COP(6)/Il/Add.1.

35 Stockholm Convention on Persistent Organic Pol/Ulants, 32 ILM (2001) 1069, Art.14.

36 Montreal Protocol, ArI.S (5)-(7).

37 Art. 20 (1) ofthis text limits the role of assistance by developed countries stat- ing that Contracting Parties, taking into account their capabilities, "shall make every effort to ensure that adequate financial resourees are available for programmes to combat desertifieation and mitigate the effects of drought". Devel-

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inclusion of land degradation as one of the focal areas of the GEF will cer- tainly change this perception.

Another important means for ensuring compliance with environmental obligations is the submission of national reports by contracting Parties. Re- porting un planued programs and policies plays a central role in the compliance process. 38 For instance, under the Montreal Protacol, States must submit reports regarding the reduction in consumption of chlorofluorocarbons and other controlled substances^J9The data and information reported by Par- ties have become a valuable source of information and a significant monitoring measure ta determine compliance by Parties with their obligations. How- ever, many countries may have problems in complying with reporting procedure requirements, such as accurate and timely data reporting, due ta a lack of technical and financial resources. In this case, the provision of tinancial and technical assistance may be a useful means ta ensure Ihal countries provide the data required by the MEA. As an example, the provision of financial and technical assistance has proved ta be a useful means for ensuring that Russia and a number of other Parties provide the data required by Article 7 of the Montreal Protocol conceming production, imports, and exports of conlrolled substances⁴⁰

Ta sum up, technical and financial assistance may take multiple forms. A common feature is the strengthening of the capacities of developing countries ta comply with the relevant agreements. Financial and technical assistance may also prove la be of great help for ensuring respect with treaty commitments in case of non-compliance. ln such cases, the provision of technical and financial assistance acts as an ex post mechanism for ensuring retum ta compliance.

oped country Parties undertake to: "mobilize substantial financial resources, in- cluding grauts and concessional loans"; "promote the mobilization of adequate, timely and predictable financial resources"; "facilitate through international co- operation the transfer of technology, knowledge and know-how"; and "explore, in cooperation with affected developing country Parties, innovative methods and incentives for mobilizing and channelling resources, including those of found.- tians, non-governmental organizations and other private sector entities, parti cu- larly debt swaps and other innovative means which increase financing by reduc- ing the extemal debt burden of affected developing country Panies, partieularly those in Amea".

38 A. Chayes/A.H. Chayes/R.B. Mitchell, supra note 14, pp. 46-47.

39 Montreal Pr%cal, Art. 7.

40 P. Bimie/A. Boyle, supra note 19, p. 521.

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III. Technical and Financial Assistance as a Means for Restoring Compliance

Non-compliance procedures have been created within the framework of several MEAs. Provision of assistance to enable Parties to achieve compliance is typical in these new compliance procedures. One of the essential features of these mechanisms is the effort to ensure continuing cooperation between States, even in case of non-compliance by sorne Parties. Non-compliance procedures have a double basis: the interest of each country to cooperate and the interest of ail others to have the country cooperate.

1. Montreal Pr%eol Non-Compliance Procedure

The non-compliance procedure adopted by parties to the Montreal Protocol is the pioneer of this type of procedure⁴¹Under the Montreal Protocol non- compliance procedure, one or more States Parties to the Protocol, the non- compliant Party itself and the Secretariat may initiate the procedure.⁴²One of the innovations of this scheme is the creation of an Implementation Committee consisting of ten States Parties, which is charged with receiving, considering and reporting on information concerning compliance with the provisions of the Protocol.

The Committee may "undertake, upon the invitation of the Party concerned, information-gathering in the territory of that Party for fulfilling the functions of the Committee" and it "maintains, in particular for the purposes of drawing up its recommendations, an exchange of information with the Executive Committee of the Multilateral Fund related to the provision of financial and technical cooperation, including the transfer of technologies to Parties operating under Article 5, Paragraph l, of the Protocol".43 The function of the Committee is to try to secure "an amicable solution of the matter on the basis of respect for the provisions of the Protocol". It reports to the Meeting of the Parties that may take a number of measures which include as-

41 Montreal Pratoeal, Art. 8. See Annex IV and V, Report ofthe Fourth Meeting of the Parties (1992), UNEP/OzL.Pro.4/15; Montreal Protocol, Annex II Tenth Meeting of the Parties (1998), UNEP/OzL.Pro.IO/9.

42 Ibid., Montreal Protoeol, Report of the Fourth Meeting of the Parties, Annex IV, para. 1-4.

43 Ibid., Montreal Protoeol, Report of the Fourth Meeting of the Parties, Annex IV, para.7.

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TECHNICAL AND FINANCLAL ASSISTANCE 285

sistance of a financial or technical nature to improve the capacity of States parties and the suspension of certain rights and privileges.44

This procedure has been invoked on several occasions by Parties to the Montreal Protocol who are in difficulty, particularly by Russia, Belarus, Ukraine, and a number of other States from Eastern Europe and the former Soviet Union⁴⁵Various measures have been recommended by the Meeting of the Parties to deal with these problems of non-compliance, including the provision of techoical and financial assistance, notably through the GEF. In these sitnations, GEF financing was used as an incentive and contributed to the resolution of the issue through the Montreal Protocol non-compliance procedure.46

The GEF financial assistance granted to the Russian Federation under a recommendation by the Montreal Protocol Implementation Committee and adopted in 1995 by the 7^thMeeting of the Parties provides a good example of such a sitnation.47 After several years of financial assistance from the GEF and consistent monitoring by the Implementation Committee, the Russian Federation fmally completed the phase-out of ozone-depleting substances as required by the Montreal Protocol. This was a remarkable achievement for which the Parties commended Russia' s efforts "ta comply with the control measures of the Montreal Protocol" while at the same time reeognizing "the support and assistance rendered by Parties to the Montreal Protocol to enable compliance by the Russian Federation."48 Thus, fmaneial and techoical assistance has been a useful incentive for Parties found to be in non- compliance with their Protocol obligations to retnm to compliance⁴⁹The

44 ibid.. Montreal Pratacol, Report of the Fourth Meeting of the Parties, Annex V.

45 On these issues, see: J. Werksrnan, "Compliance and Transition: Russia's Non- Compliance Tests the Ozone Regime", ZAORV, vol. 56 (1996), pp. 750 et seg.

C. Romano, The Peaceful Seulement of lmernational Environmental Disputes.

A Pragmatic Approach, Kluwer Law, 2000, pp. 65-90.

46 See L. Boisson de Chazoumes, "The Global Environment Facility Galaxy: On Linkages among Institutions", Max Planck Yearbook of United Nations Law, vol. 3 (1999), pp. 270-271.

47 UNEP Report of the 7^th Meeting of the Parties to the Montreal Protocol, UNEP/OzL.Pro7/12 (1995).

48 UNEP Report of the 14th Meeting of the Parties to the Montreal Protoeol, UNEP/OzL.Pro14/9 (2002).

49 For example, these Parties include: the Czech Republic, Latvia, Lithuania (Re- port of the 8'" Meeting of the Parties to the Montreal Pr%col, Decisions VIII/22-25, UNEP/OzL.Pro8/12 (1996», Azerbaijan, Belarus, Estonia, Ukraine, Uzbekistan (Report of the 10'" Meeting of the Parties to the Montreal Pro/acol, Decisions Xl20-28, UNEP/OzL.ProI0/9 (1998)), Armenia, Kazakhstan, Tajiki-

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286 LAURENCE BOISSON DE CHAZOUR..\lES

same procedure has also offered a useful means to ensure that countries comply with reporting requirements established under Article 7 and to push Contracting Parties ta submit a timetable for the ratification of subsequent amendments to the Montreal ProtocoPO

2. Kyoto Protocol Non-Compliance Procedure

The non-compliance procedure approved in 2001 by the Conference of the Parties ta the Climate Change Convention, serving as Meeting of the Parties ta the Kyoto Protocol provides another example where the provision of technical and financial assistance plays an important role in order ta restore compliance with treaty obligations⁵¹Because of the general development of the procedural structures of non-compliance mechanisms and the specifie characteristics of the Kyoto Protocol, this procedure is a very elaborate one.⁵² In particular, under this procedure Iwo branches are established, namely, the facilitative branch and the enforcement bran ch. This distinction helps ta highlight the role of financial and technical assistance in the Kyoto Protocol non-compliance procedure.

The facilitative branch relies on the principle of common but differentiated responsibilities, taking into account the respective capabilities of States Parties. The positive aim of the facilitative branch is confirmed by Article XIV of the Annex ta Decision 24/ CP.7 which lists the consequences which may be imposed by the facilitative branch in cases of non-compliance. Such consequences include:

(a) Provision of advice and facilitation of assistance ta individual Parties regarding the implementation of the Protocol;

stan (Report of the l3^thMeeting of the Parties to the Montreal Protoeol, Deci- sions XIIII17-25, UNEP/OzL.ProII/IO (2001)).

50 This was, for example, the case for Latvia. Because this State did not submit its timetable for the ratification of the London Amendment ta the Montreal Pr%- col, at ils 17'" meeting, the Implementation Committee reminded Latvia that, "in aecordance with the GEF ( ... ), the proeess far approval by GEF afthe phase-out projects could begin only after GEF had been informed of the timetable for ratification ( ... )." Implementation Committee, Report, 17th Meeting, (1997). See also, C. Romano, supra note 45, pp. 82-84.

51 Climate Change Convention, Conference of Parties, Decision 24/CP.7 and its Annex, FCCCICP/2001l13/Add.3.

52 S. Urbinati "Non-Compliance Procedure under the Kyato Protocol", Baltie Yearbook of International Law, vol. 3, 2003, p. 244.

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TECHNICAL AND FINANCIAL ASSlST ANCE 287

(b) Facilitation of fmancial and technical assistance to any Party con- cemed, including technology transfer and capacity builc1ing from sources other than those established under the Convention and the Pro- tocol for the developing countries ( ... ).

Thus, il is recognized that there is no point in imposing penalties when non- compliance stems from a lack of tinancial or technical resources. The appropriate response is to devise a plan for the provision of assistance to enable the Party concerned to implement the Protocol more effectively. In case a State Party has deliberately chosen not to comply, then the consequences may take the form of sanctions.⁵³ln particular, under Article XV of the An- nex to Decision 24/ CP. 7 adopted in 2001, the enforcement branch ascertains non-compliance of Annex 1 Parties regarding provisions conceming meth- odology and reporting requirements, the quantitied emission limitation or reduction commitments and the eligibility requirements for the use of the flexibility mechanisms.⁵⁴ln cases where a situation of non-compliance is established, the enforcement branch may impose consequences on the non- compliant Party ranging from a mere declaration of non-compliance and an order to develop a compliance plan in less severe cases⁵⁵to suspension of eligibility to use one or ail of the flexibility mechanisms, or a deduction of the number of tonnes equal to 1.3 times the amount in tonnes of excess emissions from the Party's assigned arnount for the second commitment period⁵⁶ in the most severe cases.

Non-compliance procedures generally stress the importance of techuical and tinancial assistance. Under the Basel Convention mechanism, a committee was established. !ts functions relate inter aUa to the "facilitation of assistance in particular to developing countries and countries with economies in transition, including on how to access tinancial and techuical support, including techuology transfer and capacity building"57

As in the case of the Basel compliance mechanism, the interplay between tinancial and technical assistance and compliance is a key feature of non- compliance procedures. The provision of assistance is linked to the idea of

53 See J. Werksman, "Compliance and the Kyoto Protocol: Building a Backbone into a "Flexible" Regime", Yearbook of International Environmental Law, vo\.9 (1998), p. 48.

54 Ibid., Art. XV (1), (4) (5). See Kyoto Protocol, Arts. 5 (1) (2), 6, 7 (1) (4),12, 17.

55 Ibid., Art. XV (1), (2).

56 Ibid., Art. XV (5), (6).

57 Report of the Sixth Meeting of the Parties, 2002, UNEP/CHW.6/9.

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bringing a country back to compliance with its commitments or contributing to helping it build its compliance behaviour ta reach ils commitments.5S

IV. Financial and Technical Assistance as a Facilitator in Third Party Dispute Settlement Mechanisms

In the field of dispute resolution, technical and financia! assistance may be provided ta developing countries ta encourage these States ta have recourse ta an international third party body for the settlement of their disputes. This is the case, for example, of the Secretary-General's Trust Fund ta Assist States in the Settlement of Disputes through the International Court of Jus- tice and other similar trust funds. Besides trust funds, an interesting form of technical assistance is that fumished by the Advisory Center on WTO Law, an international organization that provides legal advice on WTO law ta developing countries for, inter alia, the purpose of participating in WTO dispute resolution proceedings. Disputes with an environmental facet may be brought ta each of these fora, taking into account the jurisdiction of each of them.

A sui generis case in the dama in of technical and financial assistance in dispute resolution procedures is constituted by the United Nations Compen- sation Commission (UNCC), a Security Council subsidiary body charged with compensating ail victims of the 1990-1991 conflict between Iraq and Kuwait. Although it is not an international tribunal, the UNCC is called upon ta adjudicate claims and is bound by the qualification ofIraqi responsibility made by the Security Council, acting under Chapter VII of the UN Charter, in its resolution 687 of 1991. Iraq is responsible for direct damages and lasses deriving from its invasion and occupation of Kuwait and, as a conse- quence, the UNCC has the task ta evaluate the claims and award the appropriate amount ta the c1airnants. In Ibis process, there are many interesting clements of technical assistance aimed at facilitating the compliance of the

58 The draft procedures and mechanisms on non-compliance developed by the In- tergovemmental Committee for the Cartagena Pr%col on Biosafety provide for the "provision of financial and techoical assistance, techoology transfer, training and other capacity-building measures" in case of non-compliance. The reccnlly established Aarhus non-compliance mechanism also indicates the provision of advice and the facilitation of assistance to Parties regarding the im- plernentation of the Convention as possible measures for restoring compliance with the treaty obligations. See Intergovemmental Committee for the Cartagena Pr%colon Biosafety, (2002), UNEP/CBDflCCP/3/4; Aarhus Convention, Re- port of the First Meeting ofthe Parties, ECEIMP.PP/2/Add.8

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TECHNTCAL AND FINANClAL ASSISTANCE 289

Commission wilh ils own mandate, as weil as sorne elements of financial assistance.

1. The Secretary-General's Trust Fund ta Assist States in the Settlement of Disputes through the International Court of Justice This Fund was established in 1989 by the Secretary-General uoder the Fi- nancial Regulations and Rules of the United Nations, after consultations with the President of the International Court of Justice (ICJ). In accordance with the Tenus of Reference of the Fund, financial assistance is to be provided to States for expenses incurred in connection with (a) a dispute submitted to the ICJ by way of ad hoc agreement⁵⁹or (b) the execution of a judgment of the Court resulting from such ad hoc agreement, in order to avoid that peaceful settlement of disputes be impaired by the lack of financial or human re- sources.

The Fund is financed by voluntary contributions from States, international and non-governmental organizations as weil as by natural and juridical persons⁶⁰A three-member Panel of independent experts makes recommendations to the Secretary-General on whether aState has the necessary requirements for applying at the Fuod and, if so, which amount of financial assistance should be given⁶¹The Secretary-General then takes the final deci-

SIOn.

Since 1989 the Secretary-General has received six applications and in each case the assistance given through the resources of the Trust Fund, though limiled, has been significant. However, the last application was filed in 1997 and since then the Trust Fund has not received any other request.

This is mainly due to the restrictive character of the conditions for applying for the funds: in fact, the use of the Trust Fund is "Iimited to cases [ ... ] in which the jurisdiction of the Court is not a contentious point",62 which means that the dispute for which a developing country seeks financial assis-

59 This provision thus excludes the possibility ofbenefiting from the assistance of the Trust Fund in case of unilateral recourse to the ICI, either by way of the op- tional clause, or by way of a compromissory clause.

60 Terms of Reference, Guidelines and Rules of the Secretary-General 's Trus!

Fund to Assist States in the Sertlement of Disputes through the International Court of Justice, para. 7. UN Doc. A/44IPV.43 (1989).

61 Ibid., para. 3.

62 Cases submitted to the ICl by way of ad hoc agreements are the minority (about 15% of the total). ibid., para. 4, in C. Romano, "International Justice and Devel- oping Countries (continued): A Qualitative Analysis", The Law and Practice of International Courts and Tribunals, vol. 1 (2002), p. 555.

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tance must have been submitted to the Court by an ad hoc agreement. Cases brought before the ICJ unilaterally or by a compromissory clause contained in a treaty or by an optional dec1aration ex Art. 36 (2) of the ICJ Statute, are not eligible for funds. This restrictive condition finds ils raison d'être in the will of the Secretary-General to avoid any political appreciation on the operation of the Fund that could discourage potential contributors. As one commentator pointed out, "since international litigation is ultimately cons id- ered an unfriendly act, doing so unilaterally and with resources made available by the international community would be politically unacceptable"63 To date, six developing countries have received an award from the Trust Fund.

Financial assistance has so far been sought for boundary disputes brought before the ICJ. The last two applicants were awarded US$ 350,000 each, in June 2004, following a recommendation to the Secretary-General made by the Panel of Experts64 The resources of the Trust Fund, provided by 23 States, are, as oftoday, US$ 1,163,16265

2. Other Financial Mechanisms

The Secretary-General of the Permanent Court of Arbitration, with the approval of the Administrative Council, established a similar fund in 1994, called the Financial Assistance Fund for the Settlement of International Dis- putes66 This fund is aimed at assisting States by defraying the costs of arbitration, and il is supported by voluntary donations from States, intergovern- mental organizations, national institutions and natural and legal persons. Eli- gible States are the States Party to the Hague Convention for the Pacific Set- tlement of International Disputes of 1899 or of 1907, having conc1uded an agreement for the purpose of submitting one or more disputes for settlement under the auspices of the Permanent Court of Arbitration. Furthermore, eligible States must appear on the DAC List of AidRecipients, prepared by the

63 Ibid., p. 556.

64 Press Release of the Secretary General of 4 June 2004 L/3070, UN Doc.

65

SG/2087.

See Secretary-General's Trust Fund to Assist States in the Settlement of Dispu- tes through the International Court of Justice: Report ofthe Secretary-General of 2001 (UN Doc. N56/456 (2001)), 2002 (UN Doc. N57/373 (2002)) and 2003 (UN Doc. N58/295(2003)). See also C. Romano, supra note 62, p. 555.

66 See the Terms of Reference and Guidelines (as approved by the Administrative Council on December II, 1995), at http://www.pca-cpa.org.

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TECHNlCAL AND FINANCIAL ASSISTANCE 291

Organization for Economic Cooperation and Development (OECD)67 A Board of Trustees, composed of persons "of the highest moral standing",68 decides whether to allocate funds or not69 Sinee the inception of the fund, Norway, Cyprus, the United Kingdom, South Africa, the Netherlands, and Costa Rica have made contributions, and four grants of assistance have been made: one to a Central Asian State, one to an Asian State, and two to African States. These grants have allowed the parties to defray the costs of arbitration.1°

3. International Tribunal for the Law of the Sea Trust Fund

A similar trust fund has been established also for the International Tribunal for the Law of the Sea (ITLOS). The UN General Assembly through Resolu-

tion 55/7 (2001) requested the Secretary-General to establish and administer a Trust Fund to assist parties in the settlement of disputes through the Tribu- nal⁷! The functioning of the ITLOS Trust Fund is very similar to that of the IC] Trust Fund. Like the latter, the ITLOS Trust Fund is tinanced by voluntary contributions by States, international organizations, non-governmental organizations and natural and juridical persons; furthermore, a Panel of independent experts is called to review applications made by States Parties and make recommendations to the Secretary-General of the United Nations on the amount of tinancial assistance to be given. The main difference between the two trust funds seems to have been dictated by the will of "correcting" a

67 Para. 5 of the Terms of Reference, supra note 55. The DAC List is designed for statistical pUl-poses. It helps to measure and c1assify aid and other resource flows originating in developing countries. For the latest version of the DAC List, see http://www.oecd.org/dataoecd.

68 ibid para. 8.

69 ibid para 10.

70 See Permanent Court of Arbitration. 103" Annual Report (2003) on the activities of the Court, the functioning of the administrative services and the expendi- ture in 2003, at http://www.pca-cpa.org

7! Costs that can be defrayed include: preparation of the application and the writ- ten pleadings; professional fees of counsel and advocates for written and oral pleadings; !ravel and expenses of legal representation in Hamburg during the various phases of a case; execution of an order or judgment of the Tribunal. See para. 9 of UN General Assembly Resolution 55/7 (2001) (UN Doc. AlRES/55/7 (2001). The Division for Ocean Affairs and the Law of the Sea of the Office of Legal Affairs maintains a "list of offers of professional assistance which may be made on a reduced fee basis by suitably qualified persons or bodies" (ibid, para.

13). See C. Romano, supra note 62, p. 556.

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defect of the ICI fund: in the case of the ITLOS Trust Fund, funds can be given regardless of whether the case has been brought before the Tribunal unilaterally or by common agreement⁷²

4. Advisory Center on WTO Law

The Advisory Center on WTO Law (ACWL) is an international organization independent of the WTO, established in 2001 ta provide legal advice on WTO law, support in WTO dispute settlement proceedings and training in WTO law ta developing countries and customs territories, countries with economies in transition and least developed countries (hereinafter: developing countries). In particular, the Advisory Center on WTO Law was created ta help developing countries improve their participation in the multilateral trading system. 73

At the request of aState, prior ta the initiation of dispute seulement proceedings, ACWL lawyers may prepare a legal opinion on a case that must be brought before the WTO dispute settlement body. ACWL lawyers work together with the delegates ta prepare for consultations and will attend the consultations, if requested ta do sa. During the panel proceedings, ACWL lawyers work together with the delegates ta draft the written submissions and oral statements and prepare the answers ta the panel' s questions. This capillary, step-by-step assistance has costs that vary, depending on the share of world trade and GNP per capita of the country calling for ACWL services. The credibility of the ACWL legal advice is guaranteed by ils administrative and tinancial independence. Financial resources of the Center are fumished by donor countries and ail activities of the ACWL are supervised by a Management Board composed of independent persons.⁷⁴

72 C. Romano, supra note 62, pp. 556-557.

73 At the Signing Ceremony for the ACWL the then Director-General of the WTO, ML Renato Ruggerio stated: "In addition and from a systemic point of view, helping developing countries improve their participation in the multilateral trading system contributes to the credibility of the WTO. The credibility of such a rules-based system is dependent on ils universality. As you are weil aware, 1 strongly promoted universal membership of the WTO, but membership is not enough to achieve true universality. This depends on the participation of its Members in the system. In this area we face a serious challenge which is aggra- vated by the necessary complexity of the WTO rules and disciplines and the multiple areas it covers. If we are not sensitive, this necessary complexity may weil result in an instrument of marginalisation of those who lack human resources and expertise", at http://www.acwl.ch.

74 See http://www.acwl.ch.

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TECHNICAL AND FfNANCIAL ASSISTANCE 293

ACWL is an interesting mechanism offering assistance to developing countries called or wishing to appear before the WTO. Considering the ris- ing number of disputes settled or to be settled by the WTO Dispute Settle- ment Body, it is clear that ACWL provides an important service. As a matter of fact, notwithstanding its relatively recent creation, the ACWL, as of Janu- ary 2005, has provided support for developing countries in at least 18 cases, among them the Trade Description of Sardines Case,75 the Measures Affect- ing the Automobile Industry Case,76 and the Transitional Safeguard Meas- ures on Cotton Yarn Case⁷⁷

5. Technical and Financial Assistance at the United Nations Compensation Commission (UNCC)

The UNCC was established in 1991 with the task ta indemnify States, international organizations, enterprises and private persons having suffered losses or damage as a result of the Iraqi invasion and occupation of Kuwait in 1990-1991.

Discussing compliance in the context of the UNCC is a completely dif- ferent matter than discussing compliance of aState with its commitments.

Here compliance must be seen as compliance of the Commission and ofIraq with the criteria to be followed for the indemnification of eligible claimants.

These criteria have been established by the Security Council, at the moment of the creation of the UNCC, in its Resolution 687. In accordance with that resolution, the UNCC is called to indemnify only those claimants that meet certain requirements ratione materiae. tempo ris, loci and personae⁷⁸The

75 Pern vs. European Conununities, WTIDS231. ACWL provided legal advice to Pern.

76 lndia vs. European Communities, WTIDSI46. ACWL provided legal advice to lndia.

77 United-States vs. Pakistan, WTIDSI92. ACWL provided legal advice to Paki- stan.

78 In accordance to Resolution 687, "Iraq is liable, under intemationallaw, for any direct loss, damage, including environmental and Ibe depletion of natural re- sources, or in jury to foreign Govemment's nationals and corporations, as a re- suit of lraq's unlawful invasion and occupation ofKuwait" (S/RES/687 (1991)).

Consequently, commensurate wilb Iraq's Iiability as affirmed by Ibis Security Couneil Resolution, the UNCC is called to indemnify direct damages, suffered by States. international organizations, corporations or individuals, within the territories involved in the Iraqi eonflict, in the period 2 August 1990 - 2 March 1991.

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294 L.'\URENCE BOISSON DE CHAZOURNES

Secretary-General, in his report of 2 May 1991, in which he was asked to draw the constituent guidelines of the Commission, noted that the UNCC

is not a court or an arbitral tribunal befoTe which the parties appeaT; it is a political organ that performs an essentially fact-finding function of ex- amining daims, verifying theiT validity, evaluating losses, assessing payments and resolving disputed daims⁷⁹

As a result, the Commission, though undoubtedly a dispute settlement body, does not follow the same procedures as international courts and tribunals in its adjudication. ln particular, before the UNCC true equality does not exist between the c1aimants and Iraq.80 Notwithstanding the presence of certain features of the due process of law, the procedure before the UNCe is a sui generis one.

Technical and financial assistance are particularly important in the environmental field for a number of reasons: the absence of in loco scientific monitoring activities during the hostilities, the unwillingness of the belliger- ents to provide ail information they possess about the impact of military operations on the environment, the fact that often environrnental damage is the result of an inextricable addition of wartime illicit activities and previous peacetime licit ones and, last but not least, the lack of international prece- dents in the field of environrnental los ses suffered during warfaTe,8l are ail complexities that may Tequire careful scientific evaluation.

There are at least IWO aspects of the Commission that deserve particular attention. The first is Telated to the means that have been conceded to Iraq for a specifie category of c1aims, i.e. daims for environrnental damage and the depletion of natural resources, the so-called F4 c1aims. The second aspect deals with the technical assistance role played by the Commission's secretariat.

79 Repor/ al/he Secre/my-General pl/rsl/GI1I/o Paragraph 19 olSecl/dty Councii Resolmion 687 (/991), UN Doc. S/22559, 2 May 1991.

80 ln particular, Iraq does not have access ta c1aims (except in a few cases), but only ta the reports made by the Executive Secretary under Art. 16 orthe Provi- sional Rules for Claims Procedure. [raq can then submit its views and comments te these reports within a strict time·limit. See-infra, note 89.

81 Karine Mollard-8annelier, La protection de l'environnement en temps de conflit armé, Paris, (2001), pp. 385-386.