IMPLEMENTATION OF MEAs IN NATIONAL LAW

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Implementation of an MEA CITES in Peru (example: listing of the caoba Swietenia macrophylla 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

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