IMPLEMENTATION OF MEAs IN NATIONAL LAW

1. IMPLEMENTATION OF MEAs IN NATIONAL LAW

2. From Treaty Making to Implementation • Transition from the negotiating authority to the implementing authority. • Coordination • When : Prior to negotiation; during negotiation; after negotiation, for implementation • Who : Among which institutions and individuals • How : What are the mechanisms? Considerations? Limitations? Opportunities? • Why : What are the benefits, risks, and costs? • Analysis of the competence and capacity of relevant authorities (may be prior, during, and/or after negotiations) • Key institutions: Ministry of Foreign Affairs and the relevant environmental authority 2

3. From Treaty Making to Implementation • From soft law to hard law • When drafting legislation implementing an MEA (or multiple MEAs) • There is an opportunity to also incorporate provisions of soft law (e.g. international non-binding declarations) into domestic law 3

4. The Process of Incorporating an MEA into National Law • Methods for incorporating international environmental law into national law • Incorporated by re-enactment • Inserts the institutional, administrative, regulatory, and penal measures required by an MEA into domestic law when the legislation is adopted • This method also allows the State to translate international “soft law” obligations and principles into binding, national law, as deemed appropriate • Incorporated by reference • MEA deemed to be part of domestic law • Rapid and simple, but does not create the necessary institutional or legal frameworks 4

5. The Process of Incorporating an MEA into National Law • The status of an MEA in national law • In relation to domestic law: above, equal to, or below domestic law? • Directly applicable (monist system), or only through implementing legislation (dualist system)? • What is the legal effect of an MEA in court cases? • In comparison with different treaties? • Are MEAs at the same level, above, or below other treaties, for example those governing human rights, trade, and other sectors? • What principles apply if there is a conflict between an MEA and domestic law or between an MEA and another treaty? 5

6. The Process of Incorporating an MEA into National Law • Implementing legislation, regulations, and standards may be drafted by: • Line ministry • Members of Parliament or the relevant Parliamentary committee • Working group or inter-sectoral governmental committee • Members of the public (if so provided) • Consultants • Who might participate in drafting? • Regulated community and/or NGOs (see discussion of negotiated regulation, in Unit 8) • Public review and comment on the draft law • Possible review and comment of the draft law by the MEA Secretariat • ensure that the law fulfils the State’s MEA obligations 6

7. The Process of Incorporating an MEA into National Law • Can draft legislation: • From scratch (without reference to what other States have done) • Drawing upon legislation from other States • Informed by model legislation or drafting guidelines • Drafting may be done with (or without) technical assistance from the MEA Secretariat, UNEP, NGOs, or other resources 7

8. The Process of Incorporating an MEA into National Law • Process for developing implementing legislation for an MEA • Analysis of laws and regulations necessary to implement an MEA • Develop new legislation • New law for a single MEA • Single law that implements a cluster of related MEAs • Amend existing legislation • May be one law, but often is many laws • Analysis of institutional and administrative mechanisms • In drafting implementing legislation, what are the differences – if any – between global, regional, and bilateral treaties? 8

9. The Process of Incorporating an MEA into National Law • Implementing legislation may follow different procedures and principles, depending on whether a State has a federal governmental system or a centralized, unitary governmental system. • In federal systems, the national government may be a government of “limited power”, with certain responsibilities and issues remaining the express domain of provinces, states, or other sub-national units. 9

10. The Process of Incorporating an MEA into National Law • Taking an adaptive approach to implementing MEAs • Initial analysis of legal and institutional frameworks • Adopt implementing framework • Monitor progress • Periodically assess to identify whether frameworks are effective • Revise framework, as necessary, to improve implementation 10

11. Legislative Transformation of MEAs • Defining clear objectives for national legislation implementing an MEA • Are the objectives appropriate? • Are they sufficiently clear and understandable so that the public and the regulated community have sufficient notice? • If not, it may be difficult to prosecute for violations. • Objectives may be defined in policies, programmatic statements … or through enforceable rules 11

12. Legislative Transformation of MEAs • Structuring implementing legislation • Provisions to establish the necessary institutional, administrative, policymaking, inspection, and enforcement frameworks • These legislative elements may include: • Definitions • Objectives • Principles • Operational provisions • Compliance provisions • Incentives • Awareness-raising • Capacity-building • Phase-in period (if appropriate) • Enforcement • Liability (if appropriate) 12

13. Legislative Transformation of MEAs • Requirements will be most effective if they reflect the practical realities of compliance and enforcement. • Thus, implementing legislation should: • Be sufficiently clear and understandable to be the basis of criminal prosecution or civil enforcement action • Articulate the underlying legal authority • Precisely define which sources, activities, and substances are subject to requirements 13

14. Legislative Transformation of MEAs • Implementing legislation also should: • Precisely define the requirements and exceptions or variances, including the means for determining whether a particular facility or activity is exempt • Narrowly define the exceptions or variances so that they do not undermine the regulatory regime • Specify when a malfunction or change in local conditions may justify an exemption, the requirements that apply in those circumstances, and who makes the determination • Consistently use the same terms 14

15. Legislative Transformation of MEAs • Finally, implementing legislation should: • Clearly address how to determine compliance by specifying test methods and procedures • Clearly state deadlines for compliance • Be flexible enough to be constructively adapted through individual permits, licenses, or variances to different regulatory circumstances • Be based on technology and methodologies that are or soon will be available, reliable, and affordable 15

16. Determining Success or Failure • Why is it important to assess the success or failure of legal, administrative, and institutional frameworks implementing an MEA? • Process for assessing implementation • At the national and global levels • Indicators (what should they be?) • Reporting • Review and stock-taking • This process provides basis for revising the international and national frameworks • Comparing experiences with implementation of the Montreal Protocol, the Convention on Biological Diversity, and the Climate MEAs … what have we learned? 16

17. Implementation of an MEA • CITES in Peru (example: listing of the caobaSwieteniamacrophylla tree species) • Ratification by Congress • Forest Law • National legislative committee • Public participation • Discussion for about 25 years • Specific laws: • Supreme Decree 014-2001-AG • Permits and certification 17

18. Lessons Learned from the Peru Example • Factors influencing the effectiveness of implementation in the previous example • External Factors: • Factors over which States do not necessarily have much control, such as: the creation, follow-up, development, foreign institutions and corporations, funding, technical cooperation, geopolitical factors and conflicts • Internal Factors: • Factors that depend directly on each State and present differences between countries • Success depends particularly on these differences • Including political will, internal allocation of resources, etc. 18