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United Nations Environment Programme

Distr. GENERAL UNEP/EC/WG.1/5 16 December 1999 ORIGINAL: ENGLISH

Working Group of Experts on Compliance and Enforcement of Environmental Conventions – preparatory session Geneva, 13-15 December 1999

Report of the Working Group of Experts on Compliance and Enforcement of Environmental Conventions-preparatory session

Introduction

1. The Governing Council of UNEP decision 17/25 adopted in May 1993 on the Programme for the Development and Periodic Review of Environmental Law - Montevideo II, established the broad strategy for UNEP activities in the field of environmental law and implementation of environmental law. Two Programme Areas, namely:-A. Enhancing the Capacity of States to Participate Effectively in the Development and Implementation of Environmental Law-and- B. Implementation of International Legal Instruments in the Field of Environment, have as objectives “effective implementation of environmental law” and “promotion of effective implementation of international legal instruments in the field of the environment”. UNEP Governing Council decision 19/20 adopted in 1997 entitled “Mid-term review of the Programme for the Development and Periodic Review of Environmental Law for the 1990s and further development of international environmental law aiming at sustainable development”, commended UNEP for the action taken in implementation of Montevideo II Programme and “Encouraged the Executive Director to implement the Programme, as appropriate, in close cooperation with the relevant international organizations”; (operative paragraph 5). By its decision; 20/3 adopted in February 1999 entitled “Programme for the development and periodic review of environmental law beyond the year 2000”, the Governing Council of UNEP authorized the Executive Director, “to continue to use the current Programme for the Development and Periodic Review of Environmental Law as strategic guidance for the work of the United Nations Environment Programme in the field of environmental law until a new programme is adopted by the Council” (operative paragraph 3)

UNEP/EC/WG.1/5 Page 2 2. In accordance with the requirements of Montevideo II Programme related to promotion of effective implementation of international legal instruments in the field of the environment, the Executive Director of UNEP called for number of activities by UNEP Secretariat in these fields including organisation by UNEP of the Workshop on Enforcement of and Compliance with Multilateral Environmental Agreements, which took place in Geneva in July 1999. By his letter to the Governments, dated 23 August 1999, the Executive Director informed countries about the outcome of July 1999 meeting and stated that the issue of compliance and enforcement will be accorded a particular degree of attention in the 2000-2001 of UNEP Programme for the Development and Periodic Review of Environmental Law for the first decade of the next millennium. Accordingly, the UNEP Division of Policy Development and Law was requested to undertake follow-up activities to the Workshop and the Unit on Compliance and Enforcement of Environmental Conventions was created within this Division for this purpose. 3. In his letter dated 10 September 1999, the Executive Director of UNEP referred to the Recommendations of the Workshop and requested countries to identify their enforcement contacts as well as informed the Governments that the preparations for the development of Guidelines on co-operation at national, regional and global levels related to enforcement of and compliance with MEAs and on prevention of environmental crime, as requested by the Workshop, are underway. The Executive Director further informed the Governments that a Working Group of Experts on enforcement and implementation of environmental agreements was scheduled to meet in Geneva in the fall of 1999 to discuss and initiate the development of the Guidelines on this subject.

Opening of the meeting

4. The meeting was opened by Mr. Donald Kaniaru, Chief, Legal, Economics and Other Instruments Branch and Director, Division of Environmental Policy Implementation. In his opening address Mr. Kaniaru underscored the importance of this meeting as it has been an integral part of UNEP Montevideo II Programme. Given the fact that UNEP had facilitated negotiations of most environmental conventions and the development of environmental law for close to thirty years, it was now time, he emphasized, for the governments to deal with problems of enforcement of and compliance with MEAs to ensure their effective implementation. 5. He also underlined the issue of a serious problem which the world was facing on the issue of environmental crime and illegal traffic. He explained that this Preparatory Session is expected to present the outcome of its work to the First Meeting of the Working Group which is to take place in Spring 2000 and the second meeting which is scheduled for Autumn 2000. The progress of work will be reported to the 21st Session of the UNEP Governing Council for its further review and consideration. Election of the Bureau 6. The following members of the Bureau were nominated:

Chairman: Mr. Tomás Guardia (Panama) Vice-Presidents: Mr. Dale Kimmett (Canada)

Mr. Javad Amin-Mansour (Iran) Mr. Ladislav Miko (Czech Republic)

Rapporteur: Ms. Isatou Gaye (The Gambia)

UNEP/EC/WG.1/5 Page 3

Adoption of the Agenda 7. The meeting adopted the following agenda:

1. Opening of the meeting 2. Election of the Bureau 3. Adoption of the Agenda 4. Organization of the Session 5. Presentation of documentation for the meeting:

- Guidelines for Co-Operation at National, Regional and Global Levels related to Enforcement, Compliance and Environmental Crime (UNEP/EC/WG.1/2)

- Global and Regional Conventions: Compliance Mechanisms and Dispute Settlement in Environmental Conventions (UNEP/EC/WG.1/3)

- List of Enforcement Contacts (UNEP/EC/WG.1/4) 6. Consideration of draft Guidelines for Co-Operation at National, Regional and

Global Level related to Enforcement, Compliance and Environment Crime (UNEP/EC/WG.1/2)

7. Other business 8. Closure of the meeting.

Attendance 8. Experts from the following countries participated at the meeting: Algeria, Angola, Argentina, Australia, Austria, Benin, Brazil, Burkina Faso, Canada, China, Costa Rica, Democratic Republic of Congo, Comores, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, Estonia, France, The Gambia, Germany, Ghana, Greece, Guatemala, Haiti, Hungary, India, Indonesia, Iran, Iraq, Italy, Japan, Jordan, Republic of Korea, Kyrgyz Republic, Lebanon, Lithuania, Mali, Mexico, Morocco, Netherlands, New Zealand, Nigeria, Panama, Peru, Philippines, Poland, Russian Federation, St. Lucia, Senegal, Singapore, Slovenia, Sri Lanka, Sweden, Switzerland, Thailand, Trinidad and Tobago, Turkey, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay and Yemen. 9. The meeting was also attended by experts from the following international organizations: United Nations Economic Commission for Europe (UN/ECE); United Nations Economic Commission for Africa (UN/ECA); United Nations Economic and Social Commission for Western Asia; United Nations Environment Programme (UNEP), UNEP/Basel Secretariat; UNEP/CITES Secretariat; UNEP/MAP-Coordinating Unit for the Mediterranean Action Plan; UNEP/ROE; UNEP - Secretariat for the Vienna Convention and its Montreal Protocol – The Ozone Secretariat; United Nations Framework Convention on Climate Change (UNFCCC); United Nations High Commissioner for Human Rights; United Nations Institute for Training and Research (UNITAR); United Nations Interregional Crime and Justice Research Institute (UNICRI); World Trade Organization (WTO; European Commission; Commonwealth Secretariat; and Interpol General Secretariat. 10. The following non-governmental organizations also took part: IUCN (The World Conservation Union); International Council of Environmental Law (ICEL); and European Council of Chemical Industry (CEFIC)

UNEP/EC/WG.1/5 Page 4 Organisation of the session and presentation of documentation for the meeting 11. The Secretariat of the meeting presented the documentation prepared for it. During the general organisation of the session the experts expressed the opinion that the issue of enforcement, environmental crime and compliance is gaining more recognition in national and international relations and that there was the need to properly prepare the scope for the future meetings of the Working Group. For this pre-session no translation was available. 12. Being the subsidiary body of the Governing Council of UNEP, the meeting applied to its proceedings mutatis mutandis the Rules of Procedure of the Governing Council of UNEP. General observations 13. There was a common agreement that the important issues ahead of the Preparatory Meeting needed to be looked at in a coordinated approach. The experts agreed that there is a need to further consider direction of the future work of the Working Group and some of them particularly emphasised that special attention should be given to the issue of enforcement and environmental crime. The representatives of the multilateral environmental agreements (MEAs), namely the Secretariat of the Ozone Convention and Montreal Protocol, CITES, Basel Convention and UNFCCC, pointed out that the documents prepared for the meeting reflect to a large extent the recognised need for the work on enforcement and compliance with MEAs. They also emphasised the need of preventing of illegal traffic and environmental crime. 14. Views were expressed that the Parties mainly responsible for compliance with environmental agreements and that this group can work towards facilitation of meeting Parties’ commitments contained in the provisions of MEAs and to enforce them. The role of the public opinion and public awareness in this process was also mentioned. The opinion was expressed that it would be useful to identify the areas of agreement and/or disagreement in relation not only to the substance of enforcement, environmental crime and compliance but also in relation to the definitions themselves. Several experts suggested that the Draft Guidelines should avoid the use of negative connotations and include only positive activities and incentives which encourage compliance and enforcement of environmental conventions in the spirit of full cooperation, understanding and support. 15. Several experts referred to the urgent need to come up with internationally coordinated and concerted action to prevent and/or tackle environmental crime and illegal trade. They also referred to the initiatives of international organisations referring to compliance, enforcement and combating of environmental crime which took place not only at the UNEP GC/20 but also in CSD and G8. Experts emphasized that these issues are important and at the same time of sensitive character and therefore need careful consideration. 16. The expert from UNICRI informed the meeting that UNICRI had co-organised a Regional Workshop on « Criminal law and its administration in international environmental conventions » with South Pacific Regional Environmental Programme (SPREP) and the Commonwealth Secretariat and had embarked on a desktop study on Criminal Organisations and Crimes against the Environment. Commenting on the text of the Guidelines he asked for more examples to be included, such as regulatory regimes that are self-funding and how to foster of a « culture of compliance ». Exclusion of non-compliant parties was probably not a


very wise approach. 17. The expert from Interpol referred to the activities of Interpol namely to the signature of MOUs with CITES, WCO and the BASEL Convention, that means close co-operation with these organisations. Interpol also has developed a formatted ECO-message to be used by the National Central Bureaus (NCBs) to report cases of significance. In close co-operation with CITES a practical guide enforcing CITES has been finalized and will be sent to the 177 member countries in the four Interpol languages. Analytical studies have also been made resulting in Project NOAH and Project PRIMATES. In close co-operation with CITES and others a training programme has been made, and training has been held in Europe, Africa and Asia. The WCO has also carried out training. Interpol strongly support the work in: harmonisation of legislation; multi-agency approach, both nationally and internationally; training of law enforcement officers and customs officers (in co-operation with WCO); continue the close co-operation between CITES, WCO and INTERPOL - also the BASEL Convention; support regional activities, e.g. training and the exchange of information; emphasize the role of the NCBs; facilitate the use of Interpol NOTICES; strategic analysis; provide MODUS OPERANDI sheets. He stated that the following is the role of the NCBs: the national contact point for communication with Interpol General Secretariat; should develop a liaison contact aware of the environmental bodies within the country; and also to act as an intermediate part between the various Environmental Agencies within a country and its NCB with the purpose of ensuring communication of relevant information to the Interpol GS and other NCBs; ensure police action or co-operation requested by other countries; collect criminal intelligence and pass it on to other NCBs and Interpol GS; transmit requests for international co-operation. 18. The expert from the Commonwealth Secretariat informed the meeting that the Secretariat cooperated during the last two years with several international institutions with a view to enhancing capacity in combating environmental crimes. He referred to the recent meeting held in Botswana related to this issue and informed the meeting about the outcome. Coming to the specific points related to the Draft Guidelines he emphasized the need for ensuring a balance between trade and environment. He also referred to the need for broader definitions, i.e. underlining that implementation should start at policy level. 19. The expert from WTO informed the meeting that WTO Members, through the Committee on Trade and Environment (CTE) have stated that MEAs are the best way to tackle global environmental concerns. The WTO Secretariat, along with the UNEP Secretariat, has recently agreed to work more closely together in the area of trade and environment. At this early stage of discussions concerning the development of guidelines for enforcement of and compliance with MEAs, she commented that, in the context of the CTE, WTO Member States have been discussing trade measures pursuant to MEAs under its mandate. This discussion has been controversial and is still the topic of intense debate. This should be borne in mind when considering the draft guidelines for trade-related sanctions and trade measures that will affect both parties and non-parties to MEAs. For example, on page 7 of the draft guidelines the section III B.4. refers to the exclusion of non-parties by limiting trade in controlled items. Quantitative restrictions, such as in this proposed guideline would, in accordance with the experts, not to be in compliance with international trade law. The expert emphasized that the WTO Secretariat listens with great interest to how this Working Group will approach this important initiative to develop guidelines to improve enforcement of and compliance with MEAs.

UNEP/EC/WG.1/5 Page 6 20. Several experts underlined their support for measures to enhance the capacity of the Parties to comply with MEAs, particularly in relation to developing countries which need assistance in compliance, enforcement and prevention of environmental crime. 21. There was a general agreement that the issues of compliance with MEAs and enforcement and environmental crime are quite different and therefore it would be useful to treat them separately. One expert recommended deletion of compliance with MEA’s from the scope of work of the Working Group. 22. Two Sub-working Groups were established by the Chairman, namely Sub-working Group I to deal with the issue of Compliance with MEAs under the Chairmanship of Iran and Gambia and sub-Working Group II to deal with the issue of enforcement and environmental crime under the Chairmanship of Canada and the Czech Republic. Reports of the Sub-working groups are included in this report. 23. The majority of experts recommended to the Executive Director, that in order to assure the full participation of experts from the different geopolitical groups at the coming up meetings of the Working Group it is requested that the meeting of the Working Group be conducted in all six UN languages; namely Arabic, Chinese, English, French, Russian and Spanish. Use of the six UN languages should not, however, jeopardize the participation of experts from developing countries and countries with economies in transition at the meetings.

Recommendations of the Preparatory Meeting:

(i) It is recommended that the Secretariat will include the comments on the

documents presented by the Sub-working groups and received in writing, into the documentation for the next meeting of the Working Group. The comments should reach the Secretariat by 1 March 2000 to allow smooth preparation of the documentation.

(ii) In order to allow enough time for inclusion of written comments into the

preparatory documents for the meeting, the Working Group should meet not earlier than around May 2000. If feasible, the Bureau will review the documentation prepared by the Secretariat at the beginning of April 2000. The deadline for comments and proposals to be sent to the Secretariat was agreed to be 1st March 2000. Second meeting of the Working Group could be held in the fall of the year 2000.

(iii) According to the Rules of Procedures, the new Bureau will be elected at the

meeting of Working Group in May 2000.

REPORT OF THE SUB-WORKING GROUP I ON COMPLIANCE WITH MULTILATERAL ENVIRONMENTAL AGREEMENTS (MEAs)

The Sub-working Group met under the Chairmanship of the experts from the Gambia

and Iran at two separate sessions. It looked through the scope of the Draft Guidelines on Compliance presented by the Secretariat to the meeting and to the definition of Compliance. The meeting decided to look into the framework of future work on this issue.


The Sub-working Group suggested that the title of the document should be

“Recommended Guidelines on Compliance with MEAs”.

The Group proposed the following working definition of Compliance, namely: “Compliance” is the position of a Party with regard to its obligations under MEA. It refers to whether Parties fulfil their commitments under international agreements.

The Group agreed that written comments on the Draft Guidelines are to be sent to the Secretariat for further inclusion. The experts agreed that the commentary reflected the views of the author to the present Guidelines, should be placed at the end of the document to be presented to the meeting of the Working Group (annexed to the Report as Annex I) and that only titles and the Guidelines themselves should remain in the main part of the document. The Parties made several very concrete proposals to the Guidelines which are to be included in the Draft Guidelines for the next meeting.

It was the understanding of the experts that the whole document is open for further corrections and changes. One expert proposed to delete this section.

The following were main points of discussion for the specific Guidelines:

A. Guidelines Related to Transparency Approach: one expert proposed to move this Guideline to the part on Guidelines on Enforcement. Some experts proposed that this Guideline should be split into two parts separating strategies from the public access to information.

A.1. Monitoring, Reporting and Communication of Information: one expert did not

appreciate inclusion of reference to the ”frugality” principle (a). Another expert made reservations about the review of reports by the Secretariat (b). There were also observations on the necessity of inclusion of substantive information in the reports, recognizing the appropriate audiences as well as the body for reviewing the reports, replacing communication by review in the title.

There was common agreement that (d) is far too specific and should be redrafted to refer more generally to the tracking systems. The second sentence of (c) was proposed for deletion.

A.2. On-site Monitoring: There was a strong feeling among experts that on-site

reviews/monitoring should be done at the invitation of the Party concerned only or at least upon consent of the Party concerned. One expert proposed to delete this section.

A.3., 4. and 5. One expert proposed to move all these three items into the Guidelines

on Enforcement. Other experts were of the opinion that since this issue was part of Agenda 21 and was included in the Guidelines of ECOSOC as well, the civil society’s involvement should remain within the scope of these Guidelines under the title of partnership and should be further reviewed. It was agreed to merge these three paragraphs under the title “Partnership”.

B. Incentives for Compliance: Several experts emphasized that this chapter

should be treated with special care and should maintain a conciliatory approach. They referred to the fact that while the issue of funding was very


important it should be redrafted to avoid the impression that it is mainly linked to the availability of international financing. Several experts from developing countries emphasized that this chapter was of particular importance for them and is essential for supporting the efforts for the compliance with the MEAs. Some experts commented on the role of GEF taking into account its specific mandate. One expert proposed to consider the possibility of possible merging of parts of Chapter D on Treaty Process and Institutional Measures with Chapter B Incentives for Compliance. With respect to the paragraph on ‘Exclusion of non-parties’, some experts stressed the fact that whether or not to be a party to an international agreement was a country’s sovereign right; and joining any such agreement should be on voluntary basis. Concept of consequences of non-compliance was supported since it covers a larger scope.

C. Sanctions

There was a general agreement to change the title since the word ‘Sanctions’ was too harsh. Several experts stressed on encouraging parties to comply with MEA’s rather than resorting to punitive measures. One expert referred to the necessity of equal treatment of all parties. Some experts emphasized the need for a balance between so-called “sanctions” and incentives. One expert proposed that this section should be moved to part IV – Enforcement. One expert stated that sanctions should not cause damages to the environment.

C.1. The sub-Group was uncomfortable with the title “Informal Sanctions” and

preferred wordings such as “public pressure” or “peer pressure”.

C.3. A few experts emphasised the need for trade-related measures not to be inconsistent with WTO rules. Other experts suggested that the reference to consistency with international trade law be omitted, or modified into not constituting a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail.

D. Treaty Process and Institutional Measures

Some experts proposed to separate Treaty Process from Institutional Measures. Some experts agreed with the Guideline referring to the need for potential parties to assess their capacity for compliance before accession to an MEA.

D.1 Several experts stressed the need to provide adequate funds to ensure participation of all parties in negotiations as well as consideration of their special needs and situations, while a few felt that the issue of a special trust fund should be addressed within the overall context of measures put in place to enhance compliance.

D.2. Several experts appreciated the inclusion of party compliance plan, while one

expert questioned the appropriateness of secretariat for assessing the plan. D.3. Several experts expressed concern over the ability of parties, particularly

developing parties, to participate in all the meetings referred to, given their financial implications. One expert recommended that coordination between secretariats be ensured to avoid any duplication of efforts.


D.4. One expert proposed to move D4 to Part IV – Enforcement. Another expert

regarded sub-regional meetings important to achieve better regional consensus. D.5. One expert questioned the linkage between IFI and MEAs, referring to their

different areas of competence. Several experts felt that it is not prudent to link provision of financial assistance/concessions by International Financial Institutions (IFIs) to a Party’s compliance with MEAs. One expert cautioned that marginalization of developing countries be avoided in the process.

D.6. One expert proposed to move D6 to Part IV. One expert referred to the need of

placement of experts from developing countries within MEA’s secretariats. I. DRAFT RECOMMENDED GUIDELINES ON COMPLIANCE WITH

MULTILATERAL ENVIRONMENTAL AGREEMENTS (MEAs) A. Guidelines related to the Transparency Approach Parties should promote, as appropriate, strategies to bring their actions as well as actions of other relevant participants into the open for appropriate scrutiny by parties and, as appropriate, other groups in the international system. The public should have access to information about the agreement, including reports on national compliance, and opportunities to assist in monitoring compliance.

1. Monitoring, Reporting and Communication of Information. (a) Parties should be required to report in a common format and to follow a standard protocol in the reporting of data. The reporting requirements should be frugal (the frugality principle) to minimize the burden of reporting. National reports should be coordinated with related reports that may be required under other international agreements, and efficient reporting arrangements explored.

(b) There should be timely review of reports from the parties by the secretariat to the agreement, by experts, by peers, or by the parties themselves.

(c) The public should have access to the reports and the reviews of the reports, except for those exceptional circumstances in which confidentiality is needed. At a minimum parties should be able to review national reports to assess compliance with the agreement.

(d) As appropriate, countries should implement international measures for tracking transboundary transport of environmentally dangerous materials, which measures should incorporate recent technological advances.

2. On site Monitoring

(a) On site monitoring should be available as an option to verify compliance with the agreement and to identify compliance problems and possible solutions. Secretariats, nongovernmental experts, peers, and government experts may conduct on site monitoring.


3. Participation by Private Sector and by Nongovernmental Organizations (a) Nongovernmental organizations, the private sector, and individuals should be enlisted, as appropriate, to assist in monitoring compliance with the agreement.

4. Education and Public Awareness

(a) To promote compliance, parties should support efforts to educate the public about the obligations and to make them aware of the measures needed for compliance. The media should be engaged in this effort.

5. Dialogue with Local Communities

B. Incentives for Compliance

1. Measures to Enhance Capacity to Comply (a) International agreements should make provision for measures designed to enhance national and local capacity to comply with the agreements. These includes such measures as technical and financial assistance, training, and supplying of necessary equipment. The private sector should be encouraged to assist in enhancing national capacity to comply.

2. Funds

(a) If parties need to build national and local capacity to comply with international agreements or meet unusually burdensome obligations benefiting the global community, Parties should have access to funding mechanisms, such as the Global Environmental Facility, special funds attached to international agreements, or other intergovernmental or private funding sources, to build national and local capacity to comply with the agreements.

3. Economic Incentives

(a) Economic incentives should be considered to facilitate efficient implementation of and compliance with international obligations.

4. Exclusion of Non-Parties

(a) Incentives should be provided to countries to join international agreements and to comply with them. In some cases this may call for provisions in agreements which limit trade in controlled items with non-parties to the agreement, consistently with international trade law.

C. Sanctions

(a) A suite of sanctions should be available for parties to use as appropriate to induce compliance.

1. Informal Sanctions

(a) Informal sanctions, such as publication of violations, that affect countries’ reputation for compliance should be available.

2. Deprivation of Membership Benefits

(a) Where appropriate, sanctions should include the possibility of excluding noncomplying countries from access to certain benefits from membership in the agreement or treating them as non-member of the agreement.


3. Trade Related Sanctions

(a) Sanctions may include restraints on trade in controlled items across national borders when there is noncompliance with trade-related obligations. These sanctions must be developed and implemented consistently with international trade law.

D. Treaty Process and Institutional Measures

(a) Countries should consider potential compliance problems during treaty negotiations and include measures to promote compliance.

1. Participation in Negotiations

(a) Efforts should be made to make it possible to for countries to participate effectively in the negotiation of international agreements. This may require special trust funds to assist countries and exploration of efficient ways to conduct the negotiations.

2. Country Compliance Assessments and Scheduled Compliance

(a) In becoming parties to international agreements, countries should assess the extent to which they are already in compliance and, if necessary, develop plans for coming into compliance. The compliance plan should include benchmarks, if not otherwise called for in the agreement. The ratifying state should inform the treaty secretariat of the country compliance plan, which might accompany a country's ratification of the agreement.

3. Special Treaty Provisions

�Regular Meetings of Parties (a) Parties to international agreements should meet regularly to hold each other accountable for compliance with the agreement and to consider measures aimed at strengthening compliance.

�Implementation Committee and Procedure s for Noncompliance

(b) In drafting international agreements, States should consider providing for an Implementation Committee and for special procedures to be used to address individual cases of noncompliance. A broad range of measures that can be tailored to meet the needs of a particular case of noncompliance should be available.

4. Regional Efforts at Implementation

(a) As appropriate, regional efforts at implementation of agreements should be explored. These include regional centres, workshops, and information networks.

5. International Financial Institutions

(a) Multilateral development banks and related international intergovernmental organizations should consider linking their financing of specific requests to compliance with relevant international agreements.

(b) Multilateral investment insurance programs should consider linking coverage with compliance with relevant international legal obligations.

(c) Multilateral development banks should be a source of information about the international agreements related to the environment to which their member countries


are parties. Secretariats of international agreements related to the environment should keep these institutions informed about the status of the agreements, parties to them, and, upon request, information related to national compliance with the procedural and substantive requirements.

6. Building General National Capacity to Comply with International Agreement

(a) States should develop and implement a participatory approach to determining domestic needs and to setting priorities. This could lead to the development of a culture of compliance.

(b) States should provide for effective participation by civil society, including industry and nongovernmental organizations, in implementing the agreements. Policies that promote transparency and disseminate relevant information to the media can assist.

(c) Horizontal coordination, as appropriate, among ministries and agencies at the national level and vertical coordination, as appropriate, between national and sub-national units of government is needed to facilitate compliance.

(d) Domestic institutions concerned with compliance, including the judiciary, should be strengthened.

REPORT OF SUB-WORKING GROUP II ON EFFECTIVE NATIONAL ENVIRONMENTAL ENFORCEMENT

AND INTERNATIONAL COOPERATION AND COORDINATION IN COMBATING

ENVIRONMENTAL CRIME

The sub-working group met under the chairmanship of the experts from Canada and the Czech Republic. It examined Sections IV and V of the draft guidelines on enforcement and environmental crime (UNEP/EC/WG.1/2) and the relevant parts of Section I (definitions).

The group agreed that the most useful outcome of the deliberations would be a wider resource document encompassing elements of the draft guidelines paper, entitled: ‘Framework/Guidelines for Effective National Environmental Enforcement and International Cooperation and Coordination in Combating Environmental Crime’. This would be a separate document from the output of sub-working group I, dealing with compliance issues.

The document would contain the basic information on: context, scope, purpose, elements of national enforcement programme, international cooperation on combating environmental crime, and related guidelines. The document would also include appendices with useful reference information (including examples of good practice and case studies). An outline table of contents plus sub-headings is attached as Annex I. Further work would be needed before the first meeting of the Working Group to provide the content of the document.

The group discussed Sections IV and V of the draft guidelines on enforcement and environmental crime (UNEP/EC/WG.1/2) and the relevant parts of Section I (definitions). The outcome of the discussions is incorporated in the draft attached. Commentary by the author to the draft Guidelines are annexed to the Report as Annex II.


The group stressed the importance of receiving comments from national governments and international organisations on the draft text before further redrafting. The text will be circulated and comments sought by 1 March 2000. Following comments, a revised draft will be circulated as a basis for discussion at the first Working Group meeting planned for May 2000.

DRAFT Framework/Guidelines

for Effective National Environmental Enforcement and

International Cooperation and Coordination in Combating Environmental Crime

Table of contents 1. BACKGROUND AND CONTEXT

• Evolution and priority of environmental regulation and enforcement • Context of enforcement within wider setting of compliance and implementation

(see work of other sub-group) • Benefits and impacts of enforcement, including deterrence (examples) • Need for wide cooperation, nationally and internationally • Relevant work in other organisations

2. DEFINITIONS Definitions developed by other agencies (together with examples) should be collected so that a full discussion can be held at the first Working Group meeting. For the time being, working definitions are as follows (for ‘compliance’ definition, see work of other sub-group):

(a) ‘Implementation’ is the development of policy from an MEA and the broad set of actions – adopting legal instruments and policy programmes, monitoring their outcomes, ensuring that they are observed or obeyed – by which states ensure that they translate their commitments under an MEA into action. It includes enforcement but encompasses a wider set of activities.

(b) ‘Enforcement’ is the set of authoritative procedures and actions by which compliance with a given legal rule is compelled or non-compliance deterred by law enforcement and other agencies.

(c) ‘Environmental crime’ is the violation of environmental laws and regulations. Where these activities involve illegal movements across national boundaries, or international areas, or arrangements for such movements, they can be termed ‘international environmental crime’.

3. SCOPE National enforcement of existing laws that implement MEAs and means to improve cooperation and coordination in addressing illegal activity with international implications.

UNEP/EC/WG.1/5 Page 14 4. PURPOSE A practical tool(s) to facilitate the fulfilment of the enforcement responsibilities and cooperation of:

Ø Governments and national enforcement agencies Ø International enforcement agencies – i.e. WCO, Interpol Ø UNEP / MEA Secretariats

5. NATIONAL ENFORCEMENT

• Relevant and enforceable legislation and regulations • Institutional infrastructure – laws, administrative requirements/organisation • Linkage to other compliance mechanisms (education, public awareness) • Training • Capacity and resources • Enforcement tools and techniques • Reporting – required and requested under MEAs • Communication – other agencies, NGOs, regulated community • Coordination – central/regional/local

Relevant draft Guidelines

1. A legal and institutional framework and programme for effective enforcement, which could include:

(a) Clear responsibilities for government agencies in the various tasks involved, including defining which agency has responsibility for: �enforcement of legislation; �monitoring the implementation of the legislation; �ensuring that regulations are promoted among relevant -stakeholders (industry,

etc.); �collecting and reporting data, investigating the validity of the data collected and

acquiring missing data, comparing the data collected against legislative requirements, and investigating any discrepancies;

�applying penalties for deliberate evasion of the regulations.

(b) Clear responsibilities for non-governmental actors/regulated community such as industry (in reporting data, applying for licenses, etc.).

(c) Regulations which are clear, with explicit goals and intent, simple to implement, enforce and monitor – i.e. are comprehensible and lacking in ambiguity.

(d) An enforcement information system that can provide information efficiently and cost effectively.

(e) Clear and enforceable regulations with appropriate penalties.

(f) Periodic review of the adequacy of existing legislation.

2. The provision of resources and capacity for effective enforcement, which could include:

(a) A high priority for implementation of environmental regulations.


(b) Innovative means of raising resources.

(c) Coordinated financial and technical assistance, with capacity-building in developing countries and transition economies in drawing up and implementing effective legislation and providing adequate enforcement with effective personnel.

(d) Establishing greater cooperation between relevant agencies at national level, perhaps with formal cross-agency task forces and liaison points and committees.

(e) The establishment of national environmental crime units, where appropriate.

(f) Incorporating awareness of environmental issues, and law enforcement agencies’ role in compliance and enforcement, in training and education programmes, and providing specific training in enforcement activities, including detection techniques and guidance as to appropriate penalties.

(g) Running appropriate awareness programmes and campaigns amongst law enforcement agencies, explaining the background to and the important of the issue.

(h) Developing technological support, such as databases, detection and surveillance equipment; and more research and effort in collecting data on the extent of the problems and the routes of illegal trade.

3. Awareness-raising and public education activities by enforcement and other government agencies, which could include:

(a) Running public awareness campaigns, in cooperation with relevant communities, NGOs and/or industries; specific targeted campaigns may include (depending on the issue) groups such as producers, end-users, travellers, etc.

(b) Including awareness of the issue in schools and other educational establishments.

(c) Promoting awareness and responsible action amongst the regulated community, including trade associations and individual companies.

(d) Raising awareness of the issue amongst key opinion-formers and decision-makers such as ministers and other politicians, journalists and celebrities.

6. INTERNATIONAL COOPERATION AND COORDINATION IN COMBATING

ENVIRONMENTAL CRIME

• International commitments • Coordination with other countries and other agencies • Focal points – linkages domestic and international • Enforcement liaison amongst international agencies • Bilateral/multilateral/regional networks • Technology and information-sharing • Capacity-building assistance


Relevant draft guidelines

(a) Greater cooperation between operational agencies at the international level, including UNEP and the MEA Secretariats, Interpol, the World Customs Organisation, etc.

(b) Further cooperation with research-oriented organisations and other networks such as CICP, UNICRI, INECE, IMPEL and relevant research institutes and NGOs.

(c) The identification and dissemination of single liaison points within all relevant

organisations – such as MEA Secretariat enforcement coordinators, or national enforcement coordinators.

(d) Encouragement for regional enforcement networks and cooperative agreements.

(e) Where appropriate, harmonisation, or at least approximation, of penalties internationally or at least with near neighbouring countries.

7. APPENDICES

• List of MEAs • Case studies/examples of success • Other studies/sources of information • Report and recommendations of July workshop • International enforcement contacts • Research organisations and networks

24. Closure of the Meeting

The meeting of the Working Group of Experts on Enforcement and Implementation of Environmental Conventions – preparatory session was closed on 15 of December 1999 at 17:30.

UNEP/EC/WG.1/5/ANNEX I Page 17

ANNEX I

COMMENTARY

by Author to the Draft Guidelines on Compliance with MEA’s

I.)-A. The transparency approach (or “sunshine” strategy) relies on techniques that are intended to bring Parties actions and the actions of other relevant participants into the open for appropriate scrutiny, and thereby to encourage compliance. The techniques include national reporting, peer scrutiny of the national reports, remote monitoring by various means, on site monitoring, public access to information, media efforts to promote public awareness, participation by nongovernmental organizations and private sector networks in monitoring and evaluation, regional workshops to exchange information and monitor performance, public disclosure of noncompliance, and informal pressures by parties and secretariats. The transparency approach relies on “the reputation factor” to induce compliance. It is most effective when there is a culture of compliance with legal obligations. A. 1. Parties should strengthen treaty reporting requirements through the following measures: uniform formats for reporting in order to provide comparability of data; frugal data reporting requirements; coordination with related reports required under other international agreements; regular, timely reviews of parties’ compliance with reporting requirements; secretariat, expert, peer, or party review of the reports filed; public access to the reports and reviews of reports except in exceptional circumstances when confidentiality of data is required. A. 2. In some cases on site monitoring is important to verifying compliance and to identifying problems with complying with the agreement. A. 3. Nongovernmental organizations, the private sector, and individuals can assist in monitoring compliance with the agreement. Sometimes they bring individual compliance problems to the attention of parties to the agreement; other times they assist by assessing the state of compliance by parties to the agreement or by firms or individuals regulated under the agreement. A. 4. Generally compliance benefits from public awareness of parties’ international obligations and of their importance locally. Efforts should be made to educate the public about the obligations and the measures needed to comply with them. A culture of compliance should be fostered. A. 5. Depending upon the subject matter of the international agreement, it may be essential to involve local communities in securing compliance. B. 1. Parties may lack the capacity to comply with both the procedural and/or the substantive obligations in the agreement. They may need to enhance their technical, administrative, economic or political capacity to comply. Many measures are possible: technical assistance, financial assistance, training for administrative and other skills, provision of necessary equipment, and related measures. International agreements should provide for making such measures available to parties as needed. The private sector may have an important role in developing this capacity. B. 2. If countries lack the capacity to comply with international agreements or must shift their priorities significantly to do so, access to funds for these purposes may be helpful. Other assistance, such as technical assistance, may also be important. When the agreement calls for actions which benefit the global community but go beyond those otherwise necessary for particular parties, access to additional funds may be important. Sometime the funds will be especially established for the international agreement. At other times they may come from international funds, such as the Global Environmental Facility, or other sources, including private B. 3 Countries should be able to implement and comply with their obligations efficiently. Countries should be able to adopt those measures most appropriate for their political, economic, and cultural conditions. Economic measures involving transactions across national borders that promote efficient implementation and compliance may be useful in some agreements.

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B. 4 It is important that countries join international agreements and do not become havens to undermine the purposes of the agreements. Similarly it is important that countries join international agreements to receive the benefits of the agreement. Where the subject involves trade across national borders, it may be appropriate to limit trade with non-parties to the agreement, consistently with the laws governing international trade. C. When countries do not comply with their international obligations but have the capacity to do so or could readily acquire the capacity to do so, sanctions may be appropriate. A credible threat of sanctions may suffice to induce compliance. Thus, it is important to include sanctions among the compliance measures. C. 1. Some sanctions are intended to affect the reputation of parties for compliance. These include publication of violations of the agreement in documents submitted to the parties, threats to impose sanctions, and other measures relying upon public coercion. They may be useful to empower officials and groups within countries to encourage compliance as well as to bring pressures from other countries to bear. C. 2 Some international agreements provide for certain benefits from membership in the agreement, which could be denied for failure to comply with specific obligations. These may include exclusion from access to special funds and withholding or revocation of certain privileges, such as listing of a national site on an international list if the site is not maintained. C. 3. To the extent that an international agreement involves obligations related to trade in designated items across national borders, sanctions restraining that trade in cases of non-compliance may promote compliance. These sanctions must be developed and implemented consistently with international trade law. D. International agreements should be designed to include a suite of measures to encourage compliance, as elaborated in the previous parts, and to provide for institutional means to ensure compliance. D. 1. If countries participate effectively in the negotiation process, they may be more knowledgeable about the obligations and thus in a better position to implement and comply with the agreement. D. 2. When joining international agreements, countries should assess whether they can comply with the obligations and, if necessary, develop plans for coming into compliance D. 3. Parties to international agreements need to be held accountable to each other for compliance or non-compliance with the obligations in the agreements. Regular meetings of the parties serve this purpose by offering a forum for reviewing compliance, for persuading parties to comply, and for initiating new measures aimed to strengthen compliance. They also offer an opportunity to review national compliance. D. 3. Implementation Committee and Procedures for Noncompliance

Under some international agreements States have developed a special Implementation Committee to monitor national compliance with the agreement and to consider how to address instances of noncompliance effectively. Special procedures have been developed to address individual cases of noncompliance. These may provide for a broad range of measures to be available for strengthening compliance by a particular State with specific obligations in the agreement. D. 4. For some agreements, it may be helpful to develop regional institutions or measures to strengthen countries� compliance with their international obligations. These may range from regional centres to implement the agreements program to more informal measures such as regional workshops and information networks. By focusing on implementation at the regional level, States and their local communities may become more concerned with the agreement, develop greater capacity to implement and comply with the agreement, and more easily monitor compliance with it. D. 5.. International financial institutions, both intergovernmental and private, have important roles in promoting compliance. Multilateral development banks and related international intergovernmental institutions need to consider countries� compliance with relevant international agreements in the measures they take. D. 6. Compliance with particular agreements depends more generally upon factors within countries that affect compliance with international agreements. Efforts must be made to strengthen the domestic capacity of countries to comply generally with international obligations ………………………………………………….

UNEP/EC/WG.1/ANNEX II Page 19

ANNEX II

COMMENTARY

By Author to the Draft Guidelines on Enforcement and Combating Environment Crime IV. Guidelines on Enforcement As mentioned earlier, ‘enforcement’ of an MEA is the set of actions – adopting laws and regulations, monitoring their outcomes, ensuring that they are observed and obeyed, etc. – which a state takes within its national territory to ensure that it is in compliance with the MEA. An MEA will be more effectively enforced if a variety of conditions are met, and this section of the Guidelines sets out some common approaches. IV. 1. The first requirement for effective enforcement is full domestic implementation of MEAs and their requirements, with adequate legislation and penalties for transgressors. Clear legislation, enacted as soon as possible after ratification of the MEA is vital. Even well established MEAs still suffer from parties failing to incorporate the MEA’s requirements in domestic law. Inter alia, the national legislation should include: 1. (a) Clarity in definitions is an obvious requirement for any effective law. 1. (b) Without clear definitions of responsibilities, it is easy for the relatively new area of environmental enforcement to fall between the remits of different agencies. 1. (c) In many instances, breaches of the relevant regulations, and thereby failure of enforcement, are the result of misunderstandings or lack of knowledge, rather than deliberately criminal activities. 1. (d) The type of regulation will need to vary depending on specific national circumstances and experience with particular types of policy instrument – e.g. market-based mechanisms such as taxes or tradable permits may be appropriate in some countries but not in others. Once again, clarity of regulations assists in their implementation and enforcement. 1. (e) Lack of data is a common problem with the enforcement of MEAs, though of course vital to their successful implementation. Data collection mechanisms need to be as close to the relevant stakeholders (e.g. industry) as possible, and also cheap and effective. Model legislation and regulations could helpfully be made available by the MEA Secretariat or other relevant body. Underlying all the legislation must be a clear strategy for guaranteeing national compliance with the MEA’s objectives. This involves the identification and adoption of the most cost-effective mix of policies targeted at demand reduction, supply management and enforcement of regulations; this will of course vary depending on the MEA. 2. Effective enforcement of MEAs and the national regulations, which derive from them, requires adequate provision of resources, in terms of personnel and equipment. This includes: 2. (a) This involves, most obviously, environment ministries and agencies, but also, depending on the topic, can also involve more traditional enforcement authorities, such as police, customs and the judiciary. 2. (b) Resources for the costs involved in implementing and enforcing the legislation may sometime be generated from the area under question, through taxes, sales of permits and licenses, and so on – they do not always have to be provided from general government revenue. 2. (c) Developing countries clearly cannot afford to devote the same level of resources to enforcement as can more industrialised nations, and financial and other transfers should be implemented. As some cases of environmental crime may involve unpaid taxes or charges, limited investment here will reap financial as well as environmental dividends. V. Guidelines on Combating International Environmental Crime Within the general area of enforcement of and compliance with MEAs, the problem of environmental crime is a serious and growing one. For the purposes of these Guidelines, ‘environmental crime’ is defined as the deliberate evasion of environmental laws and regulations by individuals and companies in the pursuit of personal financial

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benefit. Where these activities involve movements across national boundaries, they can be defined as ‘international environmental crime’. Current areas in which international environmental criminal activities are known to occur include:

�Illegal trade in endangered sp ecies and their products (evasion of CITES). �Illegal trade in ozone -depleting substances (evasion of Montreal Protocol). �Illegal movements of hazardous waste (evasion of Basel Convention). �Illegal whaling (in breach of IWC regulations). �Illegal fishing (outside quota, or in breach of various regional fisheries agreements). �Illegal logging and trade in timber. �Illegal dumping of oil at sea (evasion of Marpol Convention).

It is of course impossible to arrive at precise figures for the scale of these activities, but educated guesses indicate a possible total value of the order of $20–40 billion a year, about 5–10% of the size of the global drugs trade. Compared to the ‘war on drugs’, however, the resources and political will devoted to tackling to international environmental crime are minimal, yet the problem threatens every citizen of the world, and undermines several key MEAs. A core message of these Guidelines, therefore – as stressed by recent G8 summits and by the UNEP workshop in Geneva in July 1999 – is that the magnitude of the problem needs to be recognised and sufficient efforts devoted to tackle it effectively. Some MEAs, such as CITES, suffer particularly from criminal activities; some suffer less but may be affected more severely in the future. In one instance – the Montreal Protocol – enforcement action directed against criminal activities appears to have been reasonably effective, and the problem is probably less now than it was a few years ago. Clearly there are many actions that can be taken that are specific to each MEA. This section of the Guidelines highlights the scope for general action common to all or most environmental criminal activities. 1. Almost everything listed under the ‘legal framework’ heading under ‘Enforcement’ is directly relevant to the area of tackling environmental crime – clearly, environmental regulations which are capable of being enforced effectively will be less prone to evasion for criminal purposes. Of particular importance are: 1. (a) Environmental crime is a relatively new area, and there may be little experience with setting and applying appropriate penalties to achieve deterrence. 1. (b) Large discrepancies may encourage criminals to base themselves in countries with lower levels of penalties. 2. Full cooperation between countries and agencies, at international, regional and national levels, is absolutely crucial to successful actions directed against environmental crime. This includes: 2. (a) Intelligence-gathering, information exchange, guidance (such as codes of best practice) and training can all be coordinated and delivered more effectively at international levels at defined intervals. Formal memoranda of understanding are likely to be helpful. 2. (b) Rapid communication and exchange of information is essential. 2. (c) In many instances, criminals involved in one type of activity are also found in others. Particularly where the activity is smuggling of goods to evade border checks, many types of products may be smuggled together or by the same individuals or groups. 2. (d) Regional networks such as the Lusaka Agreement or the North American Wildlife Enforcement Group provide a possible model for other regions and other MEAs. 3. Full cooperation between agencies at national level is also important, drawing on the specialist expertise of environment ministries and agencies, and the legal enforcement powers or judicial, police and customs authorities. NGOs and industry associations can help provide intelligence and additional data, and

UNEP/EC/WG.1/ANNEX II Page 21

should be brought in wherever possible. Training, support and coordination are recurring themes. Recommended activities include: 3. (a) This may include the establishment of national environmental crime units, where appropriate. NGOs and industry bodies could also usefully be included. 3. (b) Law enforcement agencies, including the police, customs and judiciary, are often unaware or badly informed of environmental policies, and may afford them a lower priority than more traditional concerns 3. (c) Similarly, even when appropriate training is provided, there may be a need for regular profile-raising exercises; environmental crime is often less immediately visible than other forms of criminal activities such as trade in illegal drugs. 3. (d) More research and effort in collecting data on the extent of the problem and the routes of illegal trade. The Interpol analyses of wildlife crime could possibly be extended into other areas, and NGOs can frequently be valuable partners in this area. 4. Underlying all these actions must be a coordinated effort to raise awareness of the issues – a common problem, of course, for environmental policies in general. If MEAs are to be fully enforced, all relevant stakeholders must be fully aware of the agreement’s background, purpose and aims, and the responsibilities of themselves and others. This can include: 4. (a) Ignorance of the issues involved is often one of the major problems, and relatively small investments of resources in public awareness programmes can reap substantial rewards. 4. (b) Young people and students are often more receptive and aware than the general public. 4. (c) Industry can often be a good source of intelligence, and should have a direct financial interest in not being undercut by illegal activities. 4. (d) A clear political lead – backed by the provision of additional resources – perhaps spurred on by a media campaign may often be needed to kick-start enforcement initiatives, or maintain the momentum. -----------------------------

ep · interpol also has developed a formatted eco -message to be used by the national central burea...

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