Imad Antoine Ibrahim

Sandrine Maljean-Dubois

Jessica Owley

Without an international tribunal or tools like trade sanctions, there is little to coerce or encourage adherence with environmental treaties. The Paris Agreement, the governing global agreement to address climate change, relies on voluntary global cooperation. Countries determine their own commitments by setting nationally determined contributions of greenhouse gases emissions.

The main mandatory elements of the agreement are reporting requirements. The success of the agreement turns on whether countries comply with these requirements. Article 15 of the Paris Agreement establishes a Compliance Committee and sets forth the mechanisms to ensure and facilitate compliance with the agreement. Yet, as

INTRODUCTION

The implementation of international law suffers from longstanding difficulties. A treaty's terms could be eloquent or powerful, but without mechanisms to carry out or implement the treaty, it remains symbolic. 1 Implementation consists of measures-legislative, administrative, or judicial-that signatories take to make international agreements operative under international and domestic law. 2 Traditional means of response to violations of international obligations (like trade sanctions or international tribunals) do not fit the needs of the environmental field. 3 Even though international dispute settlement mechanisms are developing, they are still uncommon and lack an established pattern. 4 Overall, they are poorly tailored mechanisms for enforcing compliance with multilateral environmental treaties. 5 Countermeasures are not particularly suited for environmental protection because states' obligations are nonreciprocal and are based on a common interest. 6 One way to address these implementation challenges and enhance environmental protection is to improve the monitoring and response mechanisms for noncompliance. 7 Such monitoring must be tailored to the peculiarities of this specific field of international cooperation. 8 In implementing the Paris Agreement ("the Agreement"), 9 the parties to the Agreement ("the Parties") have chosen not to pursue traditional treaty compliance mechanisms. 10 is not to say that symbols cannot advance environmental or social goals, but we must then acknowledge the role the international agreement is playing.

2. See generally ULRICH BEYERLIN & THILO MARAUHN, INTERNATIONAL ENVIRONMENTAL LAW (2011) (describing the important elements of national implementation of international environmental law and the requirements imposed by international environmental law with respect to national implementation).

3. See generally THE EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL REGIMES: CAUSAL CONNECTIONS AND BEHAVIORAL MECHANISMS (Oran R. Young ed., 1999) (examining how international regimes influence the behavior of their members and actors operating under their members' jurisdiction).

4. Considering the common interest pursued, Parties viewed financial and technical assistance to those struggling with compliance as preferable to imposing liability on those not in compliance with their climate change obligations. 11 That is, the majority of Parties believed it is more important to promote compliance than to punish noncompliance, especially as the use of sanctions would discourage countries' participation in the treaty and thus encourage free riding. 12 All these factors prompted efforts to prevent disputes and introduce innovative international monitoring procedures-inspired in part by tried and tested methods in other legal fields (such as human rights). 13 Since the 1990s, several environmental agreements have succeeded in reinventing themselves and established reporting and other monitoring methods (monitoring networks, inquiries, etc.) with more specific, ambitious, global, and coherent mechanisms to institutionalize monitoring and response to noncompliance. 14 The first noncompliance procedure for environmental agreementsdrawn up in 1990 in the framework of the Montreal Protocol of the ozone regime 15 -has been taken up and adapted by other environmental conventions, slowly becoming a standard practice. 16 Although inspired by the Montreal Protocol model, all these procedures have peculiarities of their own.

The Kyoto Protocol of the climate change regime gave rise to the most comprehensive and intrusive noncompliance procedure to date. 17 Divided into two branches-a facilitative branch and an 11. See id. (describing how "focus when addressing non-compliance with environmental obligations have [sic] moved away from . . . trying to determine liability and remedies for damages caused, to preventing them occurring and if they do occur, resolving them peacefully in a non-contentious and nonadversarial manner").

12. branch-the Kyoto Protocol's compliance committee was quasi-judicial. 18 Potential sanctions were essentially intended to be dissuasive.

To convince (almost) all countries to become signatories, the form and substance of the Agreement differs from that of its predecessor, the Kyoto Protocol. 19 The Agreement is more flexible. It is based on contributions nationally determined by Parties, 20 making the provisions ensuring transparency and control all the more important. These provisions introduce "top-down" enforcement mechanisms into an enforcement scheme that is mostly "bottom-up," the Parties determining the content of their contributions for themselves. 21 The compliance provisions play a major role: the provisions foster confidence among Parties (thereby hopefully leading them to increase their commitment), and enable the monitoring of the Parties' efforts to ensure conformance with the global target emissions trajectory. 22 Negotiators were well aware of the importance of these provisions and special care was dedicated to this matter on which a great part of the robustness of the Agreement depended. 23 The control and implementation procedure takes the form of a triptych composed of three articulated parts: (1) the transparency framework (Article 13), 24 (2) the global stocktake (Article 14), 25 and (3) the compliance mechanism (Article 15). 26 This Article examines the compliance mechanism of Article 15 and explains how it works, its remaining (discussing "the bottom-up approach" of the Agreement). See also Paris Agreement, supra note 9, at arts. 6.4, 15.1., 15.2 (establishing "[a] mechanism to facilitate implementation of and promote compliance with" the Agreement, which is "facilitative in nature . . . and non-punitive" and therefore used "on a voluntary basis").

22. See Paris Agreement, supra note 9, at art. 13.1 (creating "an enhanced transparency framework" so that Parties can "build mutual trust and confidence . . . to promote effective implementation").

23. See Voigt, supra note 21, at 164 (discussing the "week-long facilitated negotiations" that resulted in compliance provisions and marked "a significant achievement" in light of "long-standing opposition to any compliance arrangement").

24. Paris Agreement, supra note 9, at art. 13. 25. Id. at art. 14. 26. Id. at art. 15.

controversies, and ideas for how to move beyond the twenty-sixth annual Conference of the Parties ("COP") in Glasgow. [START_REF]COP Bureau of the United Nations Framework Convention on Climate Change, COP26 Postponed[END_REF]

I. KEY FEATURES

A. History

The negotiators of the Agreement dedicated special care to the procedure to facilitate implementation and promote compliance on which a great part of the robustness of the Agreement depends. [START_REF] Voigt | [END_REF] The structure of the adopted provisions comes from the efforts of an informal group of key negotiators-a coalition of developing and developed countries-including in particular South Africa, the European Union, the United States, Switzerland, New Zealand, Australia, and Singapore. [START_REF] Rajamani | Ambition and Differentiation in the 2015 Paris Agreement: Interpretive Possibilities and Underlying Politics, 65 INT[END_REF] This informal group of countries, referred to as "friends of rules," was formed after the Lima Climate Change Conference ("Lima Conference") in 2014. Members of the friends of rules realized during the Lima Conference that the rules of the game-which are of great significance for the integrity and effectiveness of the Agreement-were being rushed through by a process focused mostly on political questions. [START_REF] Bodansky | The Paris Climate Change Agreement: A New Hope?, 110 AM[END_REF] The Agreement gives a glimpse of a procedure that respects sovereignties but can ensure the accountability of the States, in the sense of being "in a position to be held responsible in the broad sense of the term." [START_REF] Richard | L'accountability Comme Alternative à la Responsabilité? Réflexions en Droit International de l'Environnement[END_REF] The Agreement lays down fundamental principles in Articles 13 to 15. 32 It was up to the subsequent meetings of the Parties to operationalize these principles. [START_REF] See | Climate Negotiators Reach an Overtime Deal to Keep Paris Pact Alive[END_REF] Given that in these matters the devil is in the details, the effectiveness of the mechanism thus depended on the operationalization decisions. 34 Negotiations, which were difficult, concluded in 2018 during COP 24 in Katowice, Poland. 35 During a "Conference of the Parties serving as the meeting of the Parties to the Paris Agreement," also called "CMA," the Parties adopted a series of decisions that gave the details for how the Agreement would function. 36 These decisions are sometimes referred to as the "Paris Rulebook" or the "Katowice Workplan." 37 The key rules that guide compliance with the Agreement are 18/CMA.1 ("Modalities, procedures and guidelines for the transparency framework for action and support referred to in Article 13 of the Paris Agreement"), 38 19/CMA.1 ("Matters relating to Article 14 of the Paris Agreement and paragraphs 99-101 of decision 1/CP.21"), 39 and 20/CMA.1 ("Modalities and procedures for the effective operation of the committee to facilitate implementation and promote compliance referred to in Article 15, paragraph 2, of the Paris Agreement"). 40 While this Article focuses on the compliance mechanism (that is, Article 15 and associated rule 20/CMA.1), the compliance mechanism is best understood as part of a trio that includes transparency and the global stocktake. Transparency rules help the Parties understand and access the Agreement's processes and reporting requirements. 41 The global stocktake is a mechanism to assess the progress (or lack thereof nationally determined contributions ("NDCs") and other broad goals of the Agreement. 42

B. Purpose and Nature of the Compliance Mechanism

Article 15 establishes a committee "to facilitate implementation" and "promote compliance" with the "provisions of this Agreement." 43 This language is the result of a compromise among the Parties. Initial discussions centered on determining the two different (or perhaps not so different) roles for the Compliance Committee (commonly referred to as "the Committee" or "Article 15 Committee" and sometimes as the "Paris Implementation and Compliance Committee" or "PAICC"). 44 Some Parties lobbied for strong compliance rules with sanctions while others wanted a purely voluntary agreement without a compliance mechanism. 45 The compromise created a Committee without teeth, one that promotes instead of enforces.

There was also debate surrounding the "provisions of this Agreement" phrase regarding whether the Committee would review only mandatory obligations or also nonmandatory obligations. 46 The Parties now seem to agree that "facilitating implementation" applies to all parts of the Agreement, while "promoting compliance" only refers to the mandatory elements and is therefore mandatory, largely centered on reporting requirements. 47 The modalities (discussed below) detail how the facilitation will occur. 48 Use of the terms "facilitate" and "promote" in Article 15.1 49 indicates that the Committee is to play an assisting role, helping Parties figure out how to comply with the Agreement and not judging whether they have (and importantly not sanctioning them when they do not). 50 Article 15.2 requires that the Committee be "expert-based and facilitative" while functioning in a "transparent, non-adversarial and non-punitive" manner. 51 The language of Article 15.2 deepens the view of the Committee as a "help desk," as some commenters have labeled it. 52 Such a role could include helping to coordinate technical assistance or assisting parties to understand funding opportunities. 53 Importantly, the Parties decided that the compliance mechanism would not be adjudicative or punitive. 54 The Committee is not a tribunal. 55 It cannot penalize Parties for failure to submit NDCs or for failure to meet NDCs. 56 Despite an apparent lack of teeth, Parties seem to view this soft compliance provision as having substantive implications. 57 Parties hope that together with the transparency framework, the Article 15 Committee's identification of noncompliance will spur action, but the Committee has no ability to ensure compliance. 58 The Paris Rulebook protects the facilitative nature of the Committee by emphasizing it will not "function as an enforcement or dispute settlement mechanism." [START_REF] Nicholls | Paris Agreement Rule Book Agreed but Is It Enough?[END_REF] While all the Parties are subject to the same compliance mechanisms, 60 the Paris Rulebook addresses differences in national capacities and capabilities by emphasizing the need for flexibility and understanding of the situations in different countries.

C. Composition and Functioning of the Committee

The decision document adopting the Agreement provided further details on the Committee. [START_REF]Conference of the Parties, Report of the Conference of the Parties on its Twenty-First Session[END_REF] It is COP decision 1/CP.21 section 102 that explains the Committee will be composed of twelve members with recognized expertise in "relevant scientific, technical, socioeconomic or legal fields." 62 The CMA elects the members, and it must consider gender balance and geographical representation when it does so. 63 The Paris Rulebook provides the details for the Committee's operation, explaining that the members shall be elected by the Parties and serve for three years with a maximum of two consecutive terms. [START_REF]Navigating The Paris Agreement Rulebook: Compliance Deeper Dive[END_REF] The first twelve-person committee was elected following COP 25 in Madrid. [START_REF]Key Paris Agreement Implementation and Compliance Work Initiated, UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE[END_REF] Once formed, Committee elected two co-chairs. 66 Committee is to meet at least twice a year and is encouraged to hold meetings "in conjunction with the sessions of the subsidiary bodies" serving the Agreement. 67 While the Committee is to operate in a "manner that is transparent," 68 its proceedings are confidential. [START_REF]Comm. to Facilitate Implementation & Promote Compliance Referred to in Article 15[END_REF] Committee member meetings are closed with only members, alternates, and secretariat officials allowed to be present. 70 The Committee is to "make every effort to reach agreement on any decision by consensus" but can resort to voting with three-quarters majority of those present and participating. [START_REF] Sharma | CAPACITY BUILDING INITIATIVE[END_REF] The Committee annually reports to the CMA but the nature of the reports is not yet clear. 72 The first report was a proposal for the rules of procedure. 73 These rules detail the roles of the members, co-chairs, timelines, and the reasoning and deliberation processes for the Committee. 74 They were adopted at CMA 3 in Glasgow, which then encouraged the Committee to move to substantive matters. 75

D. Process

Article 15.1 states that the Committee's competencies are related to all the provisions of the Agreement, 76 which leaves room for interpretation. Calls were made to limit the scope of the Committee's operations by explicitly specifying and limiting the provisions within the scope of the Committee's work. 77 The sources of information on the basis of which the Committee shall evaluate compliance with the agreement are mentioned in Articles 4 and 13. 78 Under Article 4, Parties shall "prepare, communicate and maintain successive nationally determined contributions that [they] intend[] to achieve." 79 Article 4 then goes on to precisely outline other details relevant to the submission of the NDCs. For example, Article 4 differentiates responsibilities between developed countries on the one hand and developing, least developed, and small-island developing countries on the other hand. 80 Article 4.4 encourages developing countries to reach their emission reduction targets in accordance with different national circumstances. 81 Moreover, a party can adjust its NDCs at any time "with a view to enhancing its level of ambition." 82 A special acknowledgement of the "Parties with economies most affected by the impacts of response measures, particularly developing country Parties" was made, requiring consideration of their concerns in the implementation of the Agreement. 83 Article 4 outlines obligations related to NDCs, while Article 13 requires Parties to report other types of information. 84 For example, Article 13.7 requires Parties to provide "[a] national inventory report of anthropogenic emissions by sources and removals by sinks of greenhouse gases" and "[i]nformation necessary to track progress made in implementing and achieving its nationally determined contribution." 85 Some reporting requirements are correlated to the status of the country involved. For example, developed countries provide "information on financial, technology transfer and capacitybuilding support" while developing countries provide information on the support needed. 86 There are even mechanisms to help some countries comply with their reporting requirements; developing countries can get assistance in identifying capacity-building needs after technical expert review. 87 It is important to understand the reporting requirements of Articles 4 and 13 because compliance with these requirements will likely be a central task for the Committee. Reporting on NDCs and the compliance process occurs in the context of a "transparency framework for action and support, with built-in flexibility, which takes into account Parties' different capacities and builds upon collective experience." 88 The framework acknowledges special circumstances of the least-developed countries and small-island developing states. 89 Transparency arrangements include "national communications, biennial reports and biennial update reports, international assessment and review and international consultation and analysis." 90 The framework for transparency of action requires clarity of the progress made by the Parties to reach the objectives of the Agreement, while the framework for transparency of support tracks the support provided and received by the countries. 91 Matters related to compliance can be raised by self-referral 92 or by the Committee. 93 When a compliance matter originates with the Committee, it is either automatically or discretionarily initiated. [START_REF]The 'Article 15 Committee' to Facilitate Implementation and Promote Compliance[END_REF] If a violation is automatically initiated, it is initiated by a violation of specified legally binding provisions of the Agreement in accordance with paragraph 22(a). 95 If a violation is discretionarily initiated, it is initiated with the consent of the concerned Party and involves cases of significant and persistent inconsistencies of the information submitted under Articles 13.7 and 13.9. 96 The role of the Committee is a facilitative one, and it must adopt a nonadversarial and nonpunitive approach. Still, the Committee has several options aimed at either facilitating implementation or promoting compliance: Finally, recurrent issues, including barriers to implementation and compliance, "could hinder implementation of the agreement as a whole." 98 Unlike issues of individual Parties, systemic issues apply to the process and include things like due process rights. 99 These cross-cutting issues can be tackled with collective recommendations and not just individual ones. 100 Examples of systemic issues include: the implementation of Parties' reporting obligations under Articles 9 (on past and projected future provision and mobilization of financial resources) and 13 (on emissions and the implementation of NDCs as well as on support provided by developed countries), the actual enhancement of financial, technology transfer, and capacity-building support under Articles 9, 10, and 11; the submission of adaptation communications under Article 7; or action taken to conserve and enhance sinks and reservoirs of greenhouse gases under Article 5.1, among other things. 101 Nothing in Article 15 prevents the Committee from addressing systemic issues. 102 In fact, the "Committee may identify issues of a systemic nature with respect to the implementation of and compliance with the provisions of the Paris Agreement faced by a number of Parties" 103 but "shall not address matters that relate to the implementation of and compliance with the provisions of the Paris Agreement by an individual Party." 104 II. OVERALL ASSESSMENT AND FUTURE PROSPECTS From the analysis above, it seems that the compliance mechanism of the Agreement should provide the Committee with the power to make recommendations to the CMA, which would make the final decision. If so, then the effectiveness of the compliance mechanism will depend on the willingness of a noncompliant Party to honor its commitments and apply the recommendations. 105 Hence, the compliance mechanism should have a technical/political approach to be successful. Such an approach is crucial as the introduction of enforcement tools may push Parties to withdraw from the Agreement instead of confronting the negative consequences of noncompliance. 106 The coming few years will tell whether the mechanism has been effective and the potential role that this mechanism can play as the Parties work to comply with the transparency framework of Article 13.

CONCLUSION

The review of compliance will occur by 2024. 107 Until then, the Parties must fulfill the annual reporting requirements, which will then go through two review mechanisms: a Technical Expert Review ("TER") and another form of peer review called Facilitative Multilateral Consideration of Progress ("FMCP"). 108 Parties might leave the Agreement if the compliance mechanism does not account for their differing capacities and interests while ensuring its technical implementation. Ensuring compliance will be the mark of success of the Agreement. 109 The Agreement offered a pragmatic approach to ensure compliance by accepting that "most major emitters are reluctant to tie themselves into a rigid set of predetermined emissions reductions that are legally binding" and sidestepping the distributional conflict inherent in negotiating mitigation targets. 110 Embracing this approach offered more chances for Parties to implement their NDCs and all the technical elements stipulated within the Agreement. 111 But to reach this objective, there is a need to consider the suggestions made by different legal scholars to enhance the compliance mechanism and the Agreement in general. 112 If the compliance mechanism succeeds in its mission, the mechanism would become a role model for other environmental treaties. Success, however, will only occur by adopting a hybrid technical/political approach that balances the need to comply with the Agreement with Parties' interests and capacities. The alternative is a compliance mechanism no one complies with.

  enforcement

  ) made globally and by individual Parties in attaining the https://www.nytimes.com/2018/12/15/climate/cop24-katowice-climatesummit.html. 34. See id. (describing "a detailed set of rules to implement the pact" as "what we need to get the Paris Agreement off the ground" and thus "build a virtuous cycle of trust and cooperation among countries"). 35. See id. (reporting that "[d]iplomats from nearly 200 countries reached a deal . . . after an all-night bargaining session" in Katowice, Poland). 36. See id. (discussing "a uniform set of standards for measuring [signatories'] planet-warming emissions and tracking their climate policies" for purposes of the Agreement's implementation). 37. See id. (referring to the deal as "the Paris rule book"); COP 24, UN WOMEN, https://www.unwomen.org/en/how-we-work/intergovernmentalsupport/climate-change-and-the-environment/united-nations-frameworkconvention-on-climate-change/cop-24 (last visited Nov. 10, 2021) (referring to the deal as the "Katowice Workplan"). 38. Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement, Report of the Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement on the Third Part of its First Session, Held in Katowice from 2 to 15 December 2018, U.N. Doc. FCCC/PA/CMA/2018/3/Add.2, at 61 (Mar. 19, 2019) [hereinafter, Report of the Conference Held in Katowice from 2 to 15 December 2018]. 39. See id. at 53-58. 40. See id. at 59-65. 41. See Catherine Martini, Transparency: The Backbone of the Paris Agreement, YALE CTR. FOR ENV'T. L. & POL'Y. (May 29, 2016), https://envirocenter.yale.edu/transparency-the-backbone-of-the-Paris-Agreement.

  (a) Engage in a dialogue with the Party concerned with the purpose of identifying challenges, making recommendations and sharing information, including in relation to accessing finance, technology and capacity-building support, as appropriate; (b) Assist the Party concerned in the engagement with the appropriate finance, technology and capacity-building bodies or arrangements under or serving the Paris Agreement in order to identify possible challenges and solutions; (c) Make recommendations to the Party concerned with regard to challenges and solutions referred to in paragraph 30(b) above and communicate such recommendations, with the consent of the Party concerned, to the relevant bodies or arrangements, as appropriate; (d) Recommend the development of an action plan and, if so requested, assist the Party concerned in developing the plan; (e) Issue findings of fact in relation to matters of implementation and compliance referred to in paragraph 22(a) above. 97

  See Rüdiger Wolfrum, Means of Ensuring Compliance with and Enforcement of International Environmental Law, 272 COLLECTED COURSES HAGUE ACAD. INT'L L. 9, 96-99 (1998). 5. See id. 6. See id. at 98-100. 7. See PETER H. SAND, THE EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL LAW: A SURVEY OF EXISTING LEGAL INSTRUMENTS 30, 40, 47 (1992). 8. See generally IMPLEMENTATION OF INTERNATIONAL ENVIRONMENTAL LAW (Sandrine Maljean-Dubois & Lavanya Rajamani eds., 2011) (detailing concerns related to soft law instruments, treaties with imprecise contextual and discretion-laden obligations, institutions with weak and overlapping mandates, poor or even perverse incentives for compliance, sanctions without teeth, and resource and capacity constraints at the domestic level).

	9. Paris Agreement to the United Nations Framework Convention on
	Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104.
	10. See generally Michaela Danneman, The Paris Agreement's Compliance
	Mechanism (2016) (International Environmental Law thesis, Stockholm
	University),	https://www.diva-
	portal.org/smash/get/diva2:1049560/FULLTEXT01.pdf	(explaining	and
	analyzing the intricacies of the Agreement's compliance mechanisms).

73 .

 73 See JENNIFER HUANG, CTR. FOR CLIMATE & ENERGY SOLUTIONS, A BRIEF GUIDE Report of the Conference Held in Katowice from 2 to 15 December 2018, supra note 38, at 61. 75. See generally Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement, Report of the Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement Third Session, Held in Glasgow from 31 October to 12 November 2021, U.N. Doc. FCCC/PA/CMA/2021/L.1, at 61 (Mar. 19, 2019) (explaining these adopted provisions). 76. Paris Agreement, supra note 9, at art. 15.1 (establishing the Committee as "[a] mechanism to facilitate implementation of and promote compliance with the provisions of" the Paris Agreement). 77. Sebastian Oberthür & Eliza Northrop, The Mechanism to Facilitate Implementation and Promote Compliance with the Paris Agreement: Design Options 9 (World Res. Inst., Project for Advancing Climate Transparency,

	TO	THE	PARIS	AGREEMENT	AND	'RULEBOOK'	5	(2019),
	https://www.c2es.org/wp-content/uploads/2019/06/paris-agreement-and-
	rulebook-guide.pdf; id. at art. 15.3 (mandating that the Committee adopt rules of
	procedures during its first session).
	74. Working Paper, 2018), https://files.wri.org/d8/s3fs-public/mechanism-facilitate-
	implementation-promote-compliance-paris-agreement-design-options.pdf.
	78. Paris Agreement, supra note 9, at arts. 4.2, 4.4, 4.8, 4.13, 13.7-13.10.
	79. Id. at art. 4.2.
	80. Id. at arts. 4.2-4.6.
	81. Id. at art. 4.4.

  98. Addressing Systemic Issues of Compliance and Implementation UnderArticle 15 of the Paris Agreement: Models from MEAs. LEGAL RESPONSE INT'L 2 (Aug. 11, 2017), https://legalresponse.org/legaladvice/addressing-systemicissues-of-compliance-and-implementation-under-article-15-of-the-parisagreement-models-from-meas/. 99. Oberthür & Northrop, supra note 77, at 10-11. 100. Id. 101. Id. at 11. 102. Id. 103. Report of the Conference Held in Katowice from 2 to 15 December 2018, supra note 38, at 63. 104. Id. 105. Legal and Procedural Remedies in Cases of Non-Compliance with Paris /legalresponse.org/legaladvice/legal-and-procedural-remedies-in-cases-ofnon-compliance-with-paris-agreement/.

	Agreement,	LEGAL	RESPONSE	INT'L	(Aug.	1,	2017),
	https:/

spearheading the project and Lisa Benjamin for her comments on earlier drafts.


Compte-rendu de lecture, Journal du droit international, 2021/4, p. 1575-1576. Sandrine Maljean-Dubois Directrice de recherche au CNRS (DICE, Aix-Marseille Université)

• Jutta Brunnée, Procedure and substance in international environmental law Pocket Book The Hague Academy of IL Jutta Brunnée a choisi de consacrer son cours à l'Académie de droit international de La Haye, dont cet ouvrage constitue la publication, à la distinction entre procédure et substance en droit international de l'environnement. Comme le remarque Jutta Brunnée, la distinction entre procédure et substance avait jusqu'ici largement été un angle mort de la doctrine du droit international. Elle a longtemps été peu contestée, alors qu'elle n'a en réalité rien d'évident. La frontière est parfois floue, tandis que procédure et substance interagissent et s'influencent mutuellement. De même, la distinction entre procédure et substance ne se superpose pas exactement, contrairement à ce que l'on pense parfois, à la distinction entre règles primaires et secondaires. La question fait l'objet d'un intérêt croissant. En effet, la Cour internationale de Justice a, ces dernières années, fait reposer sa jurisprudence dans le champ de l'environnement sur une distinction assez rigide entre obligations procédurales et substantielles, distinction qui a été fortement critiquée par la doctrine, mais aussi par certains juges. La discussion a révélé l'ambiguïté des obligations coutumières de prévention des dommages de ce point de vue. De son côté, l'Accord de Paris sur les changements climatiques, adopté en 2015, a marqué une évolution du régime international du climat, de la définition dans le Protocole de Kyoto de cibles de réduction des émissions contraignantes et internationalement négociées, à la charge des seuls pays industrialisés, à des contributions nationalement déterminées à la portée juridique plus sophistiquée, témoignant d'une certaine « procéduralisation » du droit international du climat. En effet, la plupart des obligations contenues dans l'Accord sont procédurales (transmettre et actualiser sa contribution nationale par exemple), tandis que les éléments substantiels ne sont généralement pas juridiquement contraignants (le contenu des contributions nationales est laissé à la discrétion des États ; les contributions figurent dans un registre Internet et non dans l'Accord de Paris). Ces deux évolutions récentes, indépendantes, mais concomitantes, ont décidé Jutta Brunnée à s'intéresser plus avant à la distinction entre substance et procédure, mais aussi, au-delà, à la relation entre substance et procédure. Elle déroule sa réflexion non pas de manière théorique, mais très concrètement, analysant la pratique du droit international de l'environnement en général, et s'agissant des obligations de diligence des États en la matière en particulier. Elle montre comment procédure et substance agissent et interagissent in concreto. Cet angle particulier lui permet de jeter un regard neuf et éclairant sur la prévention des dommages environnementaux (la no harm rule), qui repose en droit international sur un ensemble d'obligations coutumières et conventionnelles dont elle clarifie l'articulation de manière très convaincante. Les obligations de prévenir les dommages sont des obligations de conduite, qui reposent pour leur mise en oeuvre sur un ensemble d'obligations procédurales (information, notification, réalisation d'une étude d'impact…). Les obligations procédurales font ainsi partie de la substance des obligations de prévention. Jutta Brunnée en retrace toute l'évolution, depuis la prévention de dommages transfrontières, à l'origine bilatéraux, devenus régionaux puis aujourd'hui globaux, avec l'apparition des menaces globales à l'environnement (climat, ozone, biodiversité…). L'auteure souligne aussi l'apport du droit international des droits de l'homme qui fait aujourd'hui peser sur les États et, indirectement, sur les entreprises, des obligations de prévention des dommages environnementaux sans exiger de dimension transfrontalière. Jutta Brunnée met également en évidence la manière dont les conventions internationales de protection de l'environnement articulent des obligations de prévention procédurales et substantielles, dans un schéma relativement sophistiqué. Ainsi, en droit conventionnel, les deux catégories d'obligations se complètent mutuellement, mais sont légalement distinctes. À la différence des règles coutumières, les obligations procédurales n'entrent pas dans la substance des obligations substantielles.

Ainsi, on ne saurait que recommander vivement la lecture de ce petit ouvrage clair et pédagogique, qui fournit une grille très utile pour l'analyse du droit international (obligations substantielles/procédurales ; primaires/secondaires ; de résultat/de moyens), et nous convainc de l'importance majeure des règles procédurales dans le droit international d'aujourd'hui. Sandrine Maljean-Dubois, Directrice de recherche au CNRS, Aix Marseille Université, CNRS, UMR DICE (CERIC)


Sandrine Maljean-Dubois

• L. Rajamani Innovation and Experimentation in the International Climate Change Regime

Pocket Book The Hague Academy of IL Innovation and Experimentation in the International Climate Change Regime est la version écrite du cours d'été donné par Lavanya Rajamani à l'Académie de droit international de La Haye en 2018. Cet ouvrage ne se présente pas comme un manuel d'introduction au régime international du climat. Étant donné le grand nombre d'ouvrages et articles consacrés à ce sujet, y compris par Lavanya Rajamani elle-même, qui en est une des meilleures spécialistes, il importait de trouver un angle novateur. Après une très courte introduction présentant brièvement les enjeux scientifiques et les instruments, acteurs et institutions du régime international (chapitre I), c 'est ainsi aux innovations et expérimentations auxquelles le régime du climat a donné naissance que Lavanya Rajamani a choisi de consacrer son ouvrage. Elle introduit ainsi le lecteur aux différentes facettes d'un régime international qui s'est montré à la fois dynamique (évoluant avec les connaissances scientifiques et au gré des volontés politiques), adaptable (trouvant les moyens d'engager et réengager des États réticents, ainsi qu'un grand nombre d'acteurs non étatiques tels que des entreprises ou collectivités locales, amenant les États à trouver des compromis équilibrés en dépit de leurs divergences parfois profondes) et pour cela très créatif. Dans un contexte politique et économique fortement contraint, face à une urgence climatique chaque jour plus établie, les États et les institutions internationales ont ainsi été forcés de développer toute une palette d'innovations et expérimentations. Ces fortes contraintes ont conduit les acteurs du régime à bousculer les frontières conceptuelles du droit international et enrichir progressivement le coeur du droit et de la pratique des traités (p. 40). C'est bien ce qui rend ce régime intéressant, y compris pour un généraliste du droit international. C'est aussi ce qui donne toute sa pertinence à l'approche choisie par Lavanya Rajamani. De ce point de vue, l'auteure a choisi d'articuler sa réflexion autour de 4 chapitres. Le chapitre II est consacré au processus de négociation et aux aspects procéduraux en général. Il met en évidence de manière très vivante et pratique un certain nombre d'innovations, astuces et autres curiosités expérimentées ces trente dernières années. Le chapitre suivant (III) offre une réflexion poussée sur la force juridique des instruments, laquelle se révèle extrêmement sophistiquée, entre hard et soft law, en passant par toute une gamme de mutations conduisant à des instruments hybrides. Le chapitre IV est consacré au traitement différencié des États. L'auteur y montre avec brio l'évolution de la différenciation depuis l'origine, en 1992, jusqu'à l'Accord de Paris, montrant que la différenciation entre les États, de binaire à l'origine (Nord/Sud), est de plus en plus subtilement nuancée. Dans le chapitre V, l'auteure s'intéresse aux questions de contrôle, conformité, mise en oeuvre avec tout l'enjeu de l'effectivité. Là aussi, le régime a évolué vers une sophistication croissante précisément pour surmonter les blocages des négociations devenus patents après la Conférence de Copenhague en 2009. Le régime est alors passé de cibles de réduction des émissions contraignantes et internationalement négociées pour les seuls pays industrialisés (Protocole de Kyoto) à des contributions nationalement déterminées à la portée juridique plus subtile, et d'obligations substantielles à des obligations essentiellement procédurales, tandis que les mécanismes de contrôle et de réaction au non-respect s'adaptaient à l'évolution des obligations primaires. Lavanya Rajamani reconnait qu'il est encore difficile de mesurer l'impact de ce régime international sur les changements climatiques en cours. Peut-on, pourra-t-on, le qualifier de succès environnemental comme son prédécesseur le Protocole de Montréal sur l'ozone ? Quoi qu'il en soit, pour l'auteure, cette construction originale témoigne de la grande vitalité du droit international et est susceptible de produire une influence durable sur le droit international, la pratique juridique et les relations diplomatiques.

Ainsi, on ne peut que recommander chaleureusement la lecture de cet ouvrage d'une grande richesse, dans lequel Lavanya Rajamani nous fait profiter de son expérience de praticienne -elle a été au coeur du processus pendant de nombreuses années -qui lui permet de dresser un tableau original, vivant et saisissant, du régime international du climat et, au-delà, du droit international en action.

• Jutta Brunnée, Procedure and substance in international environmental law Pocket Book The Hague Academy of IL Jutta Brunnée a choisi de consacrer son cours à l'Académie de droit international de La Haye, dont cet ouvrage constitue la publication, à la distinction entre procédure et substance en droit international de l'environnement. Comme le remarque Jutta Brunnée, la distinction entre procédure et substance avait jusqu'ici largement été un angle mort de la doctrine du droit international. Elle a longtemps été peu contestée, alors qu'elle n'a en réalité rien d'évident. La frontière est parfois floue, tandis que procédure et substance interagissent et s'influencent mutuellement. De même, la distinction entre procédure et substance ne se superpose pas exactement, contrairement à ce que l'on pense parfois, à la distinction entre règles primaires et secondaires. La question fait l'objet d'un intérêt croissant. En effet, la Cour internationale de Justice a, ces dernières années, fait reposer sa jurisprudence dans le champ de l'environnement sur une distinction assez rigide entre obligations procédurales et substantielles, distinction qui a été fortement critiquée par la doctrine, mais aussi par certains juges. La discussion a révélé l'ambiguïté des obligations coutumières de prévention des dommages de ce point de vue. De son côté, l'Accord de Paris sur les changements climatiques, adopté en 2015, a marqué une évolution du régime international du climat, de la définition dans le Protocole de Kyoto de cibles de réduction des émissions contraignantes et internationalement négociées, à la charge des seuls pays industrialisés, à des contributions nationalement déterminées à la portée juridique plus sophistiquée, témoignant d'une certaine « procéduralisation » du droit international du climat. En effet, la plupart des obligations contenues dans l'Accord sont procédurales (transmettre et actualiser sa contribution nationale par exemple), tandis que les éléments substantiels ne sont généralement pas juridiquement contraignants (le contenu des contributions nationales est laissé à la discrétion des États ; les contributions figurent dans un registre Internet et non dans l'Accord de Paris). Ces deux évolutions récentes, indépendantes, mais concomitantes, ont décidé Jutta Brunnée à s'intéresser plus avant à la distinction entre substance et procédure, mais aussi, au-delà, à la relation entre substance et procédure. Elle déroule sa réflexion non pas de manière théorique, mais très concrètement, analysant la pratique du droit international de l'environnement en général, et s'agissant des obligations de diligence des États en la matière en particulier. Elle montre comment procédure et substance agissent et interagissent in concreto. Cet angle particulier lui permet de jeter un regard neuf et éclairant sur la prévention des dommages environnementaux (la no harm rule), qui repose en droit international sur un ensemble d'obligations coutumières et conventionnelles dont elle clarifie l'articulation de manière très convaincante. Les obligations de prévenir les dommages sont des obligations de conduite, qui reposent pour leur mise en oeuvre sur un ensemble d'obligations procédurales (information, notification, réalisation d'une étude d'impact…). Les obligations procédurales font ainsi partie de la substance des obligations de prévention. Jutta Brunnée en retrace toute l'évolution, depuis la prévention de dommages transfrontières, à l'origine bilatéraux, devenus régionaux puis aujourd'hui globaux, avec l'apparition des menaces globales à l'environnement (climat, ozone, biodiversité…). L'auteure souligne aussi l'apport du droit international des droits de l'homme qui fait aujourd'hui peser sur les États et, indirectement, sur les entreprises, des obligations de prévention des dommages environnementaux sans exiger de dimension transfrontalière. Jutta Brunnée met également en évidence la manière dont les conventions internationales de protection de l'environnement articulent des obligations de prévention procédurales et substantielles, dans un schéma relativement sophistiqué. Ainsi, en droit conventionnel, les deux catégories d'obligations se complètent mutuellement, mais sont légalement distinctes. À la différence des règles coutumières, les obligations procédurales n'entrent pas dans la substance des obligations substantielles. Ainsi, on ne saurait que recommander vivement la lecture de ce petit ouvrage clair et pédagogique, qui fournit une grille très utile pour l'analyse du droit international (obligations substantielles/procédurales ; primaires/secondaires ; de résultat/de moyens), et nous convainc de l'importance majeure des règles procédurales dans le droit international d'aujourd'hui.

Sandrine Maljean-Dubois, Directrice de recherche au CNRS, Aix Marseille Université, CNRS, UMR DICE (CERIC)


Sandrine Maljean-Dubois

Chapter 38 -Regional Organisations: The Case of the European Union

I. INTRODUCTION

By nature, the European Union (EU) was created by agreements between States, and belongs to the category of intergovernmental regional organisations. However, by structure, functions and powers, it is very peculiar, and is even regarded as a sui generis organisation. Standing out from the model of traditional international organisations, it has been entrusted by Member States with the adoption of legally binding acts which can have immediate and direct effects on national law. In its landmark decision Costa v Enel in 1964, the European Court of Justice clearly stated that 'opposed to other international treaties, the Treaty instituting the E.E.C. has created its own order (…). In fact, by creating a Community of unlimited duration, having its own institutions, its own personality and its own capacity in law, apart from having international standing and more particularly, real powers resulting from a limitation of competence or a transfer of powers from the States to the Community, the Member States, albeit within limited spheres, have restricted their sovereign rights and created a body of law applicable both to their nationals and to themselves'. 1 EU law is thus regarded as an autonomous legal order. 2 The institutional structure of the EU (with the European Council, European Parliament, Council of Ministers, Commission, Court of Justice, European Central Bank, Court of (*) I would like to thank warmly my friend and colleague Professor Rostane Mehdi for his helpful feedback on the first version of this paper. Any error or omission lie with me.

1 CJEU, Judgment, 15 July 1964, Flaminio Costa v E.N.E.L. Reference for a preliminary ruling: Giudice conciliatore di Milano -Italy, Case 6-64 [1964] ECR 595.

2 F. Martines, 'Direct Effect of International Agreements of the European Union' EJIL 25(2014)1: 130.

Auditors) comes closer to that of a State, but its functioning is different, especially as regards the distribution of executive, legislative and judiciary powers. Furthermore, unlike States, the EU is not sovereign and has only conferred powers, which legal bases are found in the Treaties and mainly in the Treaty on the Functioning of EU (TFEU.) 3 Its peculiarities have been internationally recognized, since the EU is often the one-of-a-kind Regional Economic Integration Organisation (REIO), allowed as such to be a member of some international organisations and to enter in agreements with third countries, alone or alongside its 28 member States.

Consolidating step by step its competences regarding environmental protection, the EU has gradually developed a comprehensive body of legislation in this field which legally binds its Member States. At first, the European legislation mainly intended to avoid or limit distortions of competition rather than to protect the environment itself. However, from the precursory European Economic Community (Treaty of Rome, 1957) to the European Union (Treaty on European Union, Maastricht, 1992), the organisation has progressively evolved towards a more preventive and comprehensive policy, including nature conservation. In this area as in others, the dynamic of European integration has benefited from the interaction of political and judicial processes. Meanwhile, the Union has been developing an external environmental policy, and has become an influent international actor at the regional but also at the global levels. It has indeed played a crucial role in different environmental negotiations, organisations and treaty bodies. For these reasons, a focus on the EU's environmental policy is particularly valuable in studying the role of regional organisations in environmental protection.

II. THE PROGRESSIVE AFFIRMATION OF EU COMPETENCE IN THE

ENVIRONMENTAL FIELD

A. EU competence in the environmental field

The consecration of EU competence

3 Adopted in 2007 and entered into force in 2009, the Lisbon Treaty amended the Treaty of Rome (1957), known in its updated form as the Treaty on the Functioning of the European Union or TFEU, and the Maastricht Treaty (1993), known in its updated form as the Treaty on European Union (2007) or TEU. These two treaties form the constitutional basis of the European Union.

The EU does not have any autonomous source of authority, independantly of its sovereign Member States. According to the principle of conferral, the EU may act only within the limits of the powers conferred upon it by the Member States in the Treaties. And yet, its environmental competence was far from obvious in its early stages. The protection of the environment is not mentionned in the Treaty of Rome in 1957, which was written at a time when the quality of the environment was not a political concern. However, with the development of international environmental law, member States gradually developped legislations in this area that could threaten competition and the free movement of goods beyond the economic field. Regarding the protection of the environment, the decisionmaking process gradually evolved from unanimity to a qualified majority of the Council in most cases, which facilitated legal developments. Meanwhile, the objectives of a comprehensive environmental policy were articulated. In addition to its internal environmental objectives, the Union aims at 'promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change' (Art. 191 (1) TFEU.) Moreover, Article 3 of the Treaty on European Union now states that 'The Union (…) shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment.' Sustainable development is thus an overidding objective of the EU. In practice, the legal bases of environmental measures are varied and go beyond Article 192 and the Environment Title.

In particular, many measures were also adopted under Article 114 TFEU, which primarily aims at the establishment and functioning of the internal market. The choice of a legal base has practical implications on the legislative process and the residual freedom of Member States, and thus is often highly discussed.5

A shared competence between the Union and its member States

Except regarding the common commercial policy and the conservation of marine biological ressources under the common fisheries policy, for which the EU has exclusive competence, competence is shared between Member States and the EU in the field of the environment. Both the Union and Member States may legislate and adopt legally binding acts. Member States have an original competence: they can take measures as long as the EU itself has not already regulated the issue. Member States keep also a residualcircumscribed -competence after the EU's intervention: they can then complete, strengthen or derogate from EU legislation. However, they do not have the right to undertake obligations which would affect the European Union's rules.

Different principles govern the much-discussed sharing of the legislative power between the EU and its Member States.

The subsidiarity principle was first introduced by the Single European Act in 1986. It was applicable only to environmental measures. It became a general principle afterwards and is now formulated at Article 5 (3) TEU. In accordance with this principle, the Union 'shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.' By nature, due to their transboundary dimension, environmental actions are generally better achieved at the EU level. It remains however difficult to assess whether a measure's objective can be better achieved at the European Union's level and this gives rise to many discussions between the EU and Member States.

The principle of proportionality is also of particular significance here. According to Article 5 (4) TEU, 'Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties'. It applies to both the choice of legal instruments, between a directive or framework-directive, which provides greater flexibility to Member States, or a regulation, and the content of legislative acts that could restrict more or less the freedom of action of individual member states.' 6 Mention should also be made of the principle of sincere cooperation between the European Union and Member States (sometimes called loyal or fair cooperation). 7 This is a farreaching obligation that has significant implications for Member States. The Court of Justice has for instance derived from this a requirement for Member States' authorities to redress the unlawful consequences of a breach of EU law and a requirement that enforcement shall be effective, proportionate and dissuasive. 8

Regarding EU external action, it is worth mentionning that according to the implicit powers theory, competence in external matters derives from explicit internal competence. It is the principle of parallelism between internal and external powers. In other words, where the Treaties assign explicit powers to the EU in a particular area, it must also have similar powers to conclude agreements with non-EU countries in the same field. 9

The issue of the distribution of competence between the Union and its Member States is a very complex and evolving one. It has long been a matter of discussion between the European Commission and EU Member States, regularly arbitrated by the European Court of Justice. Actually, 'the exact definition of competences is not set at the constitutional level, but rather in the implementation of policy (…) and in the substance of fairly technical pieces of legislation.' 10

B. EU environmental policy

EU environmental law has experienced a very high inflation rate, with about 250 main acts, mainly directives, but also hundreds of soft-law instruments. The environmental policy framework is now relatively comprehensive. In addition to extensive sectoral instruments -pollution of water, air and soil, noise, waste, chemicals, biotechnology, nature conservation, landscape etc.-, EU has adopted some cross-cuting texts -assessment of the effects of certain public and private projects, access to environmental information, public participation in environmental decision-making or liability for environmental damage… Protecting nature and strengthening ecological resilience, boosting resource-efficient, low-carbon growth, and reducing threats to human health and wellbeing linked to pollution, chemical substances, and the impacts of climate change are among the main priorities of the seventh Environment Action Programme called 'Living well, within the limits of our planet (2013-2020).' For several years now, emphasis has been put on improving the implementation of existing instruments, called the 'environmental acquis', rather than on adopting new acts.

EU environmental law has had very significant effects on the domestic legislations of Member States. In most of the Member States, the environmental legal framework is simply equivalent to EU environmental law. 11 EU policy has largely contributed to the diffusion and strengthening of environmental law, and has allowed its harmonisation among the Member States on relatively high standards. The EU has also disseminated its rules far beyond its borders, in countries which are members of the European Economic Area, 12 or by setting them as conditions that external actors must meet in order to obtain rewards or avoid sanctions in trade agreements or accession treaties or, even more indirectly, by convincing others of their appropriateness. 13 EU environmental law is also in constant interaction with international environmental law. Large parts of EU environmental law are being developed under international influence. This is the case in the areas, for example, of trade in endangered wildlife species, protection of the ozone layer, transportation of hazardous waste, acid rain or climate change. EU environmental law is, in some respects, a communitisation of the contents of international environmental law. Conversely, because it often goes further, EU law has had an impact on international environmental law,and has pushed it forward in its turn.

The issue of access to environmental information is a very good illustration of the dynamic interactions between international and EU law. 14 It is first of all up to Member States to implement Community environmental legislation, with the collaboration of regional and local authorities and stakeholders. They shall 11 L. Kramer, EU Environmental Law (Sweet & Maxwell, 2011). 12 The European Economic Area has been ratified by the European Union, Iceland, Liechenstein and Norway.

13 F. Schimmelfennig, 'EU external governance and europeanization beyond the EU', The Oxford Handbook of Governance, D. Levi-Faur (ed) (OUP, 2012): 659.

14 M. Pallemaerts, 'The Aarhus Convention at ten : interactions and tensions between conventional international law and EU environmental law' (Europa Law Publishing, 2011).

finance and implement environmental policy in their respective national systems. To that end, they must monitor the application of EU law and report on it to the Commission.

The Commission on its part is often referred to as the 'Guardian of the Treaty'; it 'shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them.' (Art. 17 Jugdment within a reasonnable timeframe, the Commission may trigger new infringement proceedings with, this time, the eventuality of (deterrent) pecuniary sanctions. Obviously, the monitoring of the implementation of European environmental law is more sophisticated and elaborated than the monitoring of international environmental law. 15 The EU is widely seen 16 as the best guarantee that EU environmental laws are correctly applied. 17 In addition to the cases brought on the Commission's own-initiative, EU citizens' complaints are the main source of information on the implementation of EU law; the Commission receives six hundred or so complaints per annum. The highest number of new Commission enforcement actions in 2016 were related to the environmental 'acquis' (19%) whereas only 10% of the registered complaints concerned environmental legislation. 18 The Commission, which has unlimited discretion here, affirms that it gives priority to the enforcement of non-transposition and non-conformity cases over those of non-application, but this policy has not been fully applied in practice. 19 Meanwhile the Commission has significantly increased the number of initiatives in order to ensure a better effectiveness of environmental law.

C. Recent developments and prospects

At both domestic, regional and international levels, the early years of environmental lawfrom the 1970s to 1990s-were characterized by normative frenzy. Emphasis was primarily put on the development of a body of regulations aimed at environmental protection. As this body of regulations reached critical mass, academics and practitioners threw light on the causes of the relative ineffectiveness of many adopted instruments and on the means to remedy it. Because environmental threats are worsening, strengthening the effectiveness of environmental law seems to be a major challenge for the future.

The European Commission has followed this trend and has developped a strategy since its 1996 Communication. 21 Since then it has adopted several complementary documents aimed at providing Member States with tools to improve the implementation on the ground and clarifying the Commission's enforcement strategy to tackle breaches of EU environmental law. 22 The strategy articulates preventive and corrective measures and is based on a large combinaison of means. It fits within a wider Commission's strategy for improving implementation of EU law. 23 Following this strategic approach, the Commission published on the 3 rd of February 2017 the Environmental Implementation Review package, which includes a Communication that proposes specific actions in order to improve the situation, and an annex that suggests priorities for action aiming at a better environmental implementation by each of the EU Member States. 24 A reflection on the choice of instruments leads to experiment market-based tools -emissions trading schemes, ecolabelling…-in addition to more classical command and control approaches. Several instruments aim at supporting the implementation and enforcement In the last few years, the -liberal-inspired-European Commission focused on its REFIT programme (Regulatory Fitness and Performance Programme) set up by the 2015 'Better Regulation Communication' to determine 'how to make EU regulation more efficient and effective while reducing burden and without undermining policy objectives.' 28 Under this programme, the Commission is screening the entire stockpile of EU legislation on an ongoing and systematic basis to identify burdens, inconsistencies, ineffective measures and determine corrective actions. The Commission started its systematic review of existing legislation on environmental policy with the legislation on water, waste, environmental liability, protection of birds and habitats and on chemicals legislation outside of REACH 29 . It acknowledges that this is a complex exercise. 30 As of now, REFIT has not produced very concrete consequences yet, but it carries the risk of a deregulation and, in the end, of a lower level of environmental protection. Indeed, a better or smart regulation agenda is easily hijacked by those seeking less regulation for their own narrow interests. 31 Furthermore, even if simplification is actually a challenge, 'Given the complexity and wideness of the whole environmental problem, the ideal of a clear, transparent, and easy to understand legislative package is illusionary'. 32

III. THE EXTERNAL DIMENSION OF THIS ENVIRONMENTAL COMPETENCE -THE EU AS A GLOBAL ACTOR?

The EU participates in environmental international agreements. It contributes to the enforcement of international environmental law in the EU legal order. But can we speak of an external environmental

A. Participation in environmental international agreements: A shared competence

The EU has an international legal personality and thus the capacity to enter into agreements with States and international organisations, if accepted as a contracting Party. Its external competence has largely been developed by case law originally, and has been codified thereafter by the Lisbon Treaty (Title V TFEU). This competence is clear and explicit in the field of the environment. According to Article 191 (4) TFEU 'Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned. The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements'. In practice, the EU has had an offensive strategy and is now a party to about forty Most of environmental treaties allow its participation as a REIO -Regional Economic Integration Organisation, the only organisation belonging to this category -but it was not the case as regards the oldest treaties, at least initially. Some of them have been amended for this purpose. For instance, the CITES did not originally authorize membership of international organisations. However, the CITES was covering matters such as as environmental protection and trade, which fall under the competence of the Union.

Decisions taken by the COPs like the amendments to the CITES Appendices affect the EU legislation. The convention has been modified upon EU request in 1983 by the 'Gaborone Amendment' which allows REIO to accede the CITES, but the amendment only entered into force in 2013, after ratification by two-thirds of the 80 States that were party to the CITES in 1983. The EU, which was until then given an observer status, finally became a full party in 2015. Article XXI of the CITES now specifies that the convention 'shall be open for accession by regional economic integration organisations constituted by sovereign States which have competence in respect of the negotiation, conclusion and implementation of international agreements in matters transferred to them by their Member States and covered by this Convention.' ( §2) When an agreement affects the EU competence, Member states that are a Party are obliged to act in the Union's interest in its context.

The EU appears as a particular player in multilateral environmental environmental negotiations. Its unity in external representation, that no other group of countries has achieved, makes 'the Union together with its members one of the most influential players in multilateral environmental affairs'. 33 In the environmental field, as a matter of shared competence, the Union accedes alongside the Member States. This creates complex internal and external problems. It can be confusing on the sharing of competence and responsibility between the EU and its Once the treaty is adopted and in force, speaking with one voice on the international scene within treaty bodies requires a deepened preparatory work at the European level. Because of its internal contradictions, the EU is not always able to perform, beyond its Member States, as a powerful negotiator and can be weaker as such than the collection of its individual Member States even if, as already mentionned, the EU and its Member States are bound by the principle of loyal cooperation (Article 4 (3) TEU.)

B. Enforcement of international environmental law in the EU legal order

According to the TFEU, 'Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.' (Art. 216 (2) TFUE) The European Court of Justice has confirmed on several occasions that the Union is bound by international rules, including customary rules, which are an integral part of the Union legal order. [START_REF]Case C-366/10[END_REF] The treaties binding upon the Union are full formal legal sources. The European Court of Justice has recognized the primacy of international law on Union secondary legislation. [START_REF] Cf | [END_REF] From this point of view, mixed agreements have the same status as purely Union agreements, in so far as their provisions fall within the scope of Community competence. In the hierarchy of norms, treaties are between primary and secondary legislation. All EU international agreements, once incorporated in the EU legal order, become the law of the land. [START_REF] Martines | Direct Effect of International Agreements of the European Union[END_REF] According to the Court, 'In ensuring compliance with commitments arising from an agreement concluded by the Community institutions, the Member States therefore fulfil, within the Community system, an obligation in relation to the Community, which has assumed responsibility for the due performance of the agreement'. 38 Hence, the ECJ has the jurisdiction to interpret and to appraise the compatibility of national law with international treaties, as long as the Union is committed, alone or alongside its member States. This also applies to customary law.

The Court has recognized the direct application, or at least the justiciability of international agreements when their provisions are sufficiently clear and detailed and do not need to be completed by subsequent legislation 39 . It is not automatic however; a balance is to be found between the obligation to comply with international law and the integrity of EU legal order. [START_REF] Martines | Direct Effect of International Agreements of the European Union[END_REF] Due to the special nature of the EU, it has to ensure compliance with international obligations not only by its own institutions, but also by Member States which sometimes are not even contracting parties to EU agreements. By contrast, the EU order is much less permeable as regards the international law obligations assumed only by Member States, in situations in which the EU is not a contracting party. 41 Notwithstanding this observation, international environmental agreements concluded by the EU benefit from the European monitoring mechanism. [START_REF] Barav | Judicial enforcement and implementation of European Union Law[END_REF] Even if it is not perfect, it remains quite sophisticated and effective compared to other international mechanisms.

From an external point of view, this mixed participation raises specific issues regarding responsibility in case of a breach of an international obligation: in this case, is/are the EU or/and Member States liable? The CJEU has suggested that the non-performance of obligations under environmental mixed agreements by the EU and/or Member States can result in joint responsibility. 43 In case of a dispute between EU countries, the Mox Plant case has shown that, bound by the principle of loyal cooperation, a Member State cannot institute proceedings against another Member State on the basis of a multilateral environmental agreement (MEA) without previously being cleared by Union institutions. [START_REF] Pavoni | Controversial aspects of the interaction between international and EU law in environmental matters: Direct effect and Member States' unilateral measures[END_REF] For an overview, it is also important to consider non-contentious international control mechanisms. Indeed, most MEAs' are now equipped with institutionalised multilateral control procedures known as compliance or non-compliance mechanisms. [START_REF]Non-compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements[END_REF]

Member

States and/or the Union can be concerned by such procedures. From this point of view, interesting interactions between the European control mechanism and the Kyoto Protocol compliance procedure have been identified, contributing to ensure the very credibility of the Protocol and the reliability of the international and European economic tools to reduce GHGs emissions. [START_REF] Tabau | Non-compliance Mechanisms: Interaction between the Kyoto Protocol System and the European Union[END_REF] In another field, several cases were brought before the Aarhus Convention Compliance Committee that raised delicate issues concerning the participation of the EU and its Member States: the joint/shared responsibility of the EU and its Member States vis-à-vis MEAs; the Union's responsibility with regard to the implementation of MEAs at EU and national levels; the effects of MEAs on the jurisdiction of the European Court of Justice; the responsibility of the EU for the action of Member States that are not Party to a MEA. 47

C. Is there a EU external environmental policy?

The EU has now a long-standing practice and a growing role on the international environmental scene. But the organisation -more precisely the Commission or the Commission jointly with Member States-remains torn between its aspiration to an international leadership, aspiration well-reflected in the Lisbon Treaty, and the hurdles to become a global actor. Its capacity to be a global actor has varied over time. In that respect, the Lisbon Treaty established a new constitutional -legal and institutional-framework, with new treaty rules on EU external representation. It is now under a general obligation to 'promote multilateral solutions to common problems, in particular in the framework of the United Nations.' 48 According to Elisa Morgera, the EU increasingly uses its external action through different instruments -unilateral, bilateral, inter-regional and multilateral-to actively support the development and implementation of international environmental law. [START_REF] Morgera | The trajectory of EU biodiversity cooperation: Supporing environmental multilateralism through EU external action[END_REF] It has demonstrated its role as a promoter of environmental protection standards. For instance, EU rewards motivate third states to ratify environmental treaties. [START_REF] Schulze | External dimensions of European environmental policy: An analysis of environmental treaty ratification by third states[END_REF] In particular, the EU is the world's largest provider of development assistance. It has, at least in quantitative terms, the potential to support environmental protection objectives and processes.

The channels of influence variy over time, depending on the progress of multilateral cooperation. But the EU actorship varies according to the areas involved as well. For instance, in the field of climate change, it has had high aspirations to leadership and has been successful -at least at times-to play a very active role. Indeed, climate change has been given a high priority and is the most prominent area of EU external action. In addition to its action within the United Nations Convention on Climate Change, the EU has increasingly sought to use its political and economic influence and advance climate change objectives through its bilateral and inter-regional external relations. [START_REF] Kulovesi | Climate change in EU external relations : please follow my example (or I might force you to)[END_REF] Although it acquired new and more convincing means, and gained progressively an external recognition, according to L. Kramer it is 'not equipped to assume a permanent global leadership function.' 52 Despite the new provisions of the Lisbon Treaty (Article 7 TFEU and Article 21 (3) TEU), ensuring coherence between environmental protection and other conflicting priorities at the European level (horizontal coherence), and between the external action of the Union and of its Member States (vertical coherence) remains a big

  and services within the 'Common Market'. It became necessary to seek a certain harmonisation at the European level. At the same time, a landmark Meeting of Heads of State and Government in Paris in 1972 recognised that economic development does not constitute an end in itself, but should serve to improve the quality of life. 4 By this declaration, a flexible interpretation of the Treaty of Rome was then legitimised. This led to the adoption of the First Community Environment Action Programme in 1973, followed by six other programmes over the years. These programmes are guidance documents only but they have played a fundamental role in the strategic orientation of the EU's environmental policy. While the first Community legislative instruments were adopted in the late 1970s, the legal bases of the Community's competence were the subject of lengthy debate. The Community found them in Article 100 of the Treaty of Rome (now Article 115 TFEU), which allows for the adoption of directives for the approximation of laws, regulations and administrative provisions which have a direct impact on the common market, and thus maked it possible to regulate non-market barriers (eg product standards), and / or Art. 235 (now Article 352 TFEU), which states that, if action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and the Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures. It is significant that these two legal bases required the unanimity of Member States. This explains why during this first period, Community environmental law was essentially based on the lowest common denominator. Founded on fragile legal bases, the Community's competence remained limited until the adoption of the Single European Act in 1986. The latter added a new title on the 'Environment' to the Treaty of Rome, thus laying down the framework for an environmental 'action' of the Community (Title 7, Art. 130 R/S/T, now Art. 191-192-193 TFEU.) From implicit, the Community competence became then clear and explicit, operating therefore on firm legal bases. New changes were made by the Treaty of Maastrich (1992), the Treaty of Amsterdam (1997) and the Treaty of Lisbon (2007.) The initial European Economic Community became a Union with competences broadened far

  (1) TEU) It has the possibility of triggering infringement proceedings whenever it believes that a Member State has breached EU law. If necessary, the Commission can then refer the case to the European Court of Justice. Some judgments of the latter have played an important role in improving the application of EU environment law. Moreover, if a Member State does not comply with the Court's

  of EU environmental legislation, such as the directive on environmental liability, 25 the recommendation providing for minimum criteria for environmental inspections 26 or the directive on the protection of the environment through criminal law.27 An informal network of environmental authorities of the EU Member States was set up in 1992. Called IMPEL -for European Union Network for the Implementation and Enforcement of Environmental Law-, it associates acceding and candidate countries of the EU, European Economic Area and European Free Trade Association countries. It promotes a more efficient implementation of EU environmental legislation by information and experience sharing or joint projects.

  environmental treaties, among which the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution (1976) and almost all its protocols, the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (1998), the Espoo Convention on 31 A. Farmer, 'Better Regulation and the Future of EU Environmental Policy', 2017, https://ieep.eu/news/better-regulation-and-the-future-of-eu-environmental-policy accessed 23 August 2018. 32 M. Peeters, R. Uylenburg, 'Concluding observations', in EU environmental legislation: Legal perspectives on regulatory stratégies, New horizons in environmental and energy law, M. Peeters, R. Uylenburg (eds) (Edward Elgar, 2014): 235. Environment Impact Assessment in a Transboundary Context (1985), the Stockholm Convention on Persistent Organic Pollutants (2001), the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989), the Convention for the Protection of the Marine Environment of the North-East Atlantic (1992), the Convention on Biological Diversity (1992), The Montreal Protocol on Substances that Deplete the Ozone Layer (1987), the United Nations Framework Convention on Climate Change (1992), its Kyoto Protocol (1997) and the Paris Agreement (2015) or the Convention on International Trade in Endangered Species of Wild Fauna and Flora (so-called CITES) (1973).

  Member States. Third parties need to know and understand what is within the remit of the Union. Continuing with the example of CITES, its Article XXI (3) specifies that 'In their instruments of accession, such organisations shall declare the extent of their competence with respect to the matters governed by the Convention.' Then, 'In matters within their competence, such regional economic integration organisations shall exercise the rights and fulfil the obligations which this Convention attributes to their Member States, which are Parties to the Convention. In such cases the Member States of the organisations shall not be entitled to exercise such rights individually.' (Art. XXI (4)) Finally, 'In the fields of their competence, regional economic integration organisations shall exercise their right to vote with a number of votes equal to the number of their Member States which are Parties to the Convention. Such organisations shall not exercise their right to vote if their Member States exercise theirs, and vice versa.' (Art. XXI (5)) Most of environmental treaties which allow EU's accession alongside that of its Member States use the same wording. But what seems to be clear in theory is not in practice. The distribution is frequently discussed within the EU and evolves over time, with external consequences. Indeed, the mixed nature of most of international environmental agreements generates peculiar difficulties regarding their negotiation and adoption as well as their implementation. The concluding process of a new convention is now, after the Lisbon Treaty, detailed by Article 218 -except for the common commercial policy covered by Article 207. Since Lisbon, the Commission is explicitly mandated to represent the EU externally. 34 Within the framefork of multilateral environmental agreements' treaty bodies, the Commission's officials represent the Union as well. However, some Member States are quite reluctant since it reduces their leeway. The continuing power struggle between institutions (Council and Commission) and between institutions and Member States does not facilitate the role of the EU as such. At the end, it hampers the effectiveness and visibility of the European policy.

  See Case C-201/02, Wells [2004] ECR 723, para 64-5 ; Case 68/88, Commission v Greece [1989] ECR 2965, para 23-4.

7 See Article 4 (3) TEU. 8 9 See the landmark judgment of the CJEC of 31 March 1971, Case 22-70, Commission of the European Communities v Council of the European Communities. -European Agreement on Road Transport [1971] ECR 63. 10 H. Vedder 'The formalities and substance of EU external environmental competence: Stuck between climate change and competitiveness' in E. Morgera (ed), The external environmental policy of the European Union: EU and international law perspectives (CUP, 2012): 11.

  20 15 Cross-reference to other chapters on control/compliance ? 16 By 83 % of EU citizens. 17 Environment Poll, January 2018, https://ec.europa.eu/environment/efe/themes/economics-strategy-andinformation/environment-poll-citizens-trust-eu-expect-more_en accessed 23 August 2018. 18 EU, Monitoring the implementation of EU Law, Tools and Challenges -Study (EU, 2017): 7. See for example Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, EU actions to improve environmental compliance and governance, Brussels, 18.1.2018 COM(2018) 10 final.

19 E. Hattan, 'The Implementation of EU Environmental Law', Journal of Environmental Law, Vol. 15, Issue 3 (2003): 273. 20

  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Improving the delivery of benefits from EU environment measures: building confidence through better knowledge and responsiveness, COM/2012/095 final; Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Implementing European Community Environmental Law, SEC(2008) 2851, SEC(2008) 2852, SEC(2008) 2876, COM/2008/0773 final.

	21 European Commission, Implementing Community environmental law. Communication from the
	Commission, COM (96) 500 final, 22 October 1996.

22 23 See European Commission, A Europe of Results -Applying Community Law, COM/2007/0502 final. 24 European Commission, The EU Environmental Implementation Review: Common challenges and how to combine efforts to deliver better results, COM(2017) 63 final.

25

  Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ L 143, 30.4.2004: 56-75). 26 Recommendation of the European Parliament and of the Council of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States (OJ L 118, 27.4.2001): 41-6. 27 Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (OJ L 328, 6.12.2008): 28-37. 28 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Better regulation for better results -An EU agenda, 19.5.2015 COM(2015) 215 final. 29 REACH is the Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals, establishing a European Chemicals Agency, OJ L 396, 30.12.2006, p. 1-849.

30

European Union, Monitoring the implementation of EU Law, Tools and Challenges -Study (EU, 2017): 23.

Declaration fo the First Summit Conference of the Enlarged Community, Bull EC V -1972, 10, para 3.

D. Langlet, S. Mahmoudi, EU environmental law and policy (OUP, 2016): 97.

On this principe, see CJEU, Judgment, Case C-414/16, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV, 17 avril 2018, not yet published in the ECR.

M. Buck, 'The EU's representation in multilateral environmental negotiations after Lisbon', in The external environmental policy of the European Union: EU and international law perspectives (n 9) 76.

Except for matters falling under the Common Foreign and Security Policy (CFSP) which is not the case of environmental policy.

issue. [START_REF] Cremona | Coherence and EU environmental policy[END_REF] Furthermore, in the meantime, the EU has been through successive enlargements, making internal cohesion harder. It remains a complex issue as regards the 'unique and evolving nature of the Union as a global actor.' 54

IV. CONCLUSION

The EU is definitely a very peculiar regional organisation that played a major role in the development of demanding environmental domestic laws in EU countries, the application of which it monitors and sanctions non-compliance. This is well illustrated by the concerns regarding the impact of Brexit on environmental protection in UK. [START_REF] Reid | Brexit and the future of UK environmental law[END_REF] The EU internal environmental policy expands on the international stage. Even if it lacks the internal structures and ressources to fully and effectively assume a role as global environmental player, 56 the EU participates in environmental negotiations, concludes and implements international treaties and exercises its 'soft power' to promote the development and implementation of international environmental law. It contributes to improving the effectiveness of international environmental treaties and principles. The content of EU environmental law, being itself the result of an international negotiation, improves in terms of legitimacy and appropriateness. It is able to inspire international environmental rules and domestic legislations of third countries. Legal transplants of EU law into the domestic laws of non-EU countries are frequent. [START_REF] Whittaker | The Right of Access to Environmental Information and Legal Transplant Theory: Lessons from London and Beijing[END_REF] The Lisbon Treaty offers new opportunities and challenges as regards the consistency and effectiveness of the EU external policy. [START_REF] Morgera | Introduction[END_REF] But there still are uncertainties and thus room for experimentation. The EU has to consolidate its role as a global actor, and to adapt its structures to this end. European integration is a unique adventure and it takes time to overcome understandable resistances. From this point of view, the challenges presented by the last enlargement, as well as the consequences of the announced Brexit, deserve special attention.

V. BIBLIOGRAPHY


Ngoc Phuong

Anh Duong

Alexandre Almin

Léo Lemarié

Ravi Kiran

Machine Learning

Reducing redundancy in Semantic-KITTI using data augmentation within AL

come   L'archive ouverte pluridisciplinaire

Introduction

• Problem: Large-scale datasets contain high redundancy.

• Motivation: Data augmentation (DA) models the redundant generative process that gives similar samples in autonomous driving datasets. training time in production over large datasets. • Similar gains have been observed using DA by [START_REF] Beck | Effective Evaluation of Deep Active Learning on Image Classification Tasks[END_REF] on CIFAR dataset for classification task.

  Random, BALD (avg[entropy(preds)] -entropy[avg(preds)])Examples of DA on range images (a) Random dropout (b) Random cyclic shift (c) Instance cut paste Top: Original | Middle: Augmented | Bottom: Difference DA evaluation MeanIoU on test set Labeling efficiency on test set Results • BALD with DA can achieve an important dataset compression, by using only 60% of the total sample pool. • DA improves model generalization by regularization, making the sample selection more informative • DA improves the stability of models. Mean variance on test set Aggregated heuristic evaluation Aggregated heuristic score of samples sorted by decreasing value (using models w/o DA) over labeled pool(L), unlabeled pool(U), and Test-Time DA (TTDA) of L and U. • Goal: Understand how the AL pipeline ranks and selects augmented vs normal samples w.r.t heuristic. • Result: DA could generate high-score samples, but it could also provide transformed samples outside of the dataset distribution. Top hardest samples (a) BALD (b) Random Top: Target | Middle: Prediction | Bottom: Heuristic score Conclusion • DA helped to select better informative samples, by improving the heuristic function stability. • Improved labeling efficiency: With only 60% of the samples, we reached the accuracy of supervised training on full selected dataset. • DA reduced annotation costs as well as reducing

•

  Our focus: Evaluate the effect of DA on uncertainty sampling and labeling efficiency in active learning (AL) for large-scale point cloud semantic segmentation datasets.