Comments on Selected Portions of the JWGC Co-Chairs’ “Elements” Paper

The Center for International Environmental Law (CIEL) provides comments on the Joint Working Group on Compliance (JWGC) Co-Chairs' "Elements" paper regarding the Kyoto Protocol's compliance system. CIEL advocates for a standing compliance body with distinct facilitative, enforcement, and eligibility branches, emphasizing transparency, civil society participation, and a dynamic Compliance Fund to replace "borrowing" as a remedy for non-compliance.

• The compliance system should be comprehensive, applying to all Kyoto Protocol commitments to prevent the "balkanization" of the Protocol. This includes administering participation rules for Kyoto mechanisms—such as joint implementation, CDM, and emission trading—through the compliance system's eligibility function.
• CIEL proposes a standing compliance body divided into three branches with distinct roles and expertise: a facilitative branch focusing on "cooperation, flexibility, and assistance"; an enforcement branch based on "automaticity, predictability and deterrence" staffed by legal experts; and an eligibility branch to evaluate the technical and administrative capacity of Parties to participate in mechanisms.
• To ensure the system is fair and apolitical, members of the compliance body should serve in their personal capacities as recognized experts rather than as representatives of national governments. Furthermore, the process for triggering compliance actions should be open to civil society, allowing them to submit relevant information on their own initiative.
• The compliance system should prioritize transparency and openness, contrasting with the "closed procedures of the World Trade Organization." CIEL recommends that all formal meetings be open to the public with advance notice, and that minutes and decisions be made publicly available.
• The role of the COP/MOP should be limited to oversight and policy direction. CIEL suggests that decisions of the compliance body be adopted by a "negative supermajority" (e.g., two-thirds or three-fourths) to prevent a single Party from blocking a ruling, which would be a risk under a consensus-based rule.
• CIEL opposes "borrowing" (subtraction of tonnes) as a response to non-compliance, arguing it has low deterrent value and may lead to permanent atmospheric GHG accumulation. Instead, it proposes a Compliance Fund where Parties pay fees to underwrite reliable GHG mitigation projects to return to compliance.
• Financial penalties should be authorized only if they are assessments payable to the Compliance Fund. To avoid creating a "price cap" that disincentivizes domestic reductions, these penalties should not be fixed per-tonne rates but should be dynamically priced based on the cost of actual emissions reduction projects.
• The compliance system should be distinct from the dispute settlement provisions of Article 19. While the compliance system manages implementation of commitments to the "world’s family of nations," Article 19 should be reserved for specific claims where one Party alleges direct harm by another Party.

APA

Center for International Environmental Law (2000). Comments on Selected Portions of the JWGC Co-Chairs’ “Elements” Paper. https://www.ciel.org/wp-content/uploads/2015/03/compliancecomments1.pdf

Chicago

Center for International Environmental Law. Comments on Selected Portions of the JWGC Co-Chairs’ “Elements” Paper. 2000. https://www.ciel.org/wp-content/uploads/2015/03/compliancecomments1.pdf.

Wikipedia

{{cite press release |author=Center for International Environmental Law |title=Comments on Selected Portions of the JWGC Co-Chairs’ “Elements” Paper |date=31 January 2000 |url=https://www.ciel.org/wp-content/uploads/2015/03/compliancecomments1.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@misc{centerforinternationalenvironmentallaw2000comments, author = {{Center for International Environmental Law}}, title = {{Comments on Selected Portions of the JWGC Co-Chairs’ “Elements” Paper}}, publisher = {Center for International Environmental Law}, year = {2000}, month = jan, url = {https://www.ciel.org/wp-content/uploads/2015/03/compliancecomments1.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }