Administrative Models Employed by Member States

Presentation byTeni Housty

Structure of PresentationIntroductionImplementationGeneral MEA RequirementsSome MEA examples - Vienna Contention for the

Protection of the Ozone Layer 1985, Ramsar Convention on Wetlands, 1971United Nations Convention to Combat Desertification – 1992, CITES, CBD and UNFCCC.

Alternative SourcesFocal PointsImplementation by re-enactment and examplesImplementation by reference and examplesMr. Justice Dr. Winston Anderson’s Guidelines.

The Honourable Mr. Justice Dr. Winston AndersonCaribbean Legislatures need to ensure that

there are suitable legislative and institutional frameworks for the implementation of MEA’s

MEAs may be incorporated by traditional means but also in new and novel ways.

ImplementationArticle 27 of the Vienna Convention on the law of

treaties.MEAs, whether global or regional, make

obligations of participating states and require the making of specific measures for compliance. Among these requirements may be those for:enactment of implementing legislation;establishment of specific enabling

administrative/institutional arrangements;public awareness and education;environmental management measures;regulation and enforcement.

General MEA requirementsSeveral MEAs require Parties to create

national implementation plans that detail how they plan to comply with their obligations under an MEA.

Development and adoption of implementing laws and regulations are among the most vital steps a Party will take to comply with an MEA.

Vienna Contention for the Protection of the Ozone Layer 1985Article 2: General obligationsThe Parties shall take appropriate measures in accordance with

the provisions of this Convention and of those protocols in force to which they are party to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer.

To this end the Parties shall, in accordance with the means at their disposal and their capabilities: (b) Adopt appropriate legislative or administrative measures and

co-operate in harmonizing appropriate policies to control, limit, reduce or prevent human activities under their jurisdiction or control should it be found that these activities have or are likely to have adverse effects resulting from modification or likely modification of the ozone layer;

Ramsar Convention on Wetlands, 1971 Article 3(1). The Contracting Parties shall

formulate and implement their planning so as to promote the conservation of the wetlands included in the List, and as far as possible the wise use of wetlands in their territory.

United Nations Convention to Combat Desertification - 1992Article 5Obligations of affected country Parties In addition to their obligations pursuant to

article 4, affected country Parties undertake to:

(e) provide an enabling environment by strengthening, as appropriate, relevant existing legislation and, where they do not exist, enacting new laws and establishing long-term policies and action programmes.

CITESArticle VIII - Measures to Be Taken by the

Parties 1. The Parties shall take appropriate measures

to enforce the provisions of the present Convention and to prohibit trade in specimens in violation thereof. These shall include measures:

(a) to penalize trade in, or possession of, such specimens, or both; and

(b) to provide for the confiscation or return to the State of export of such specimens.

UNFCCArticle 4 COMMITMENTS1. All Parties, taking into account their common but

differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall:

(f) Take climate change considerations into account, to the extent feasible, in their relevant social, economic and environmental policies and actions, and employ appropriate methods, for example impact assessments, formulated and determined nationally, with a view to minimizing adverse effects on the economy, on public health and on the quality of the environment, of projects or measures undertaken by them to mitigate or adapt to climate change;

Convention on Biological DiversityWidest Range of implementation options.Article 6 - General Measures for Conservation and

Sustainable Use Each Contracting Party shall, in accordance with its particular

conditions and capabilities: (a) Develop national strategies, plans or programmes for the

conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans or programmes which shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned; and

(b) Integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.

Convention on Biological DiversityArticle 8 In-situ Conservation (j) Subject to its national legislation, respect, preserve and maintain knowledge,

innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices;

(k) Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations;

Article 9 Ex-situ Conservation (c) Adopt measures for the recovery and rehabilitation of threatened species and

for their reintroduction into their natural habitats under appropriate conditions; (d) Regulate and manage collection of biological resources from natural habitats

for ex-situ conservation purposes so as not to threaten ecosystems and in-situ populations of species, except where special temporary ex-situ measures are required under subparagraph (c) above

Alternative Implementation MeasuresSources of Information for the Drafter

Action Plans – Guyana National BioDiversity Action Plan I and II

Projects Reports and Outputs – National Capacity Self Assessment Reports (NCSA)

National Communications – Prepared for each convention as an assessment of state of compliance

ProgrammesStrategies

Practical Implementation – National Focal PointsPolitical and TechnicalExisting National Structures – Examine

existing Legislative Mandates. Guyana –CBD – Environmental Protection AgencyNCCD – Guyana Lands and Surveys

CommissionUNFCC – Previously Hydro-metherological

department – Water and Sewage ActConvention enforcement and monitoring

aspects.

Implementation by Re-EnactmentImplementation by Re-Enactment – The repeating

verbatim or by paraphrase the substantive provisions of the treaty to which the State is a party.

This is described as the traditional approach of Caribbean Countries.

From the drafting perspective it is important to possess the drafting skills, understand the existing national laws and appreciate the manner in which treaty obligations are translated into substantive laws.  

The specific methods can also be regulations under specific laws.

ExamplesCBD – Saint LuciaCITES JamaicaBASEL Convention Jamaica - "Natural Resources

(Hazardous Waste)" regulations 2002 as amended.CITES Guyana Regulations, 1999, revisions 2008, CITES Bahamas - Wildlife Conservation and Trade

Act, 2004, No. 26 of 2004 - AN ACT TO IMPLEMENT THE CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND FLORA (CITES), WITH A VIEW TO THE PROTECTION OF WILD SPECIES FROM HARM THROUGH UNSUSTAINABLE EXPLOITATION.

Implementation by ReferenceIncorporation by reference – This is in the

form of a short statute whose provision is that the treaties listed in the schedule, have the force of law in the country concerned.

Less work for the drafter but practical considerations for the responsible country.

ExamplesSt Kitts and Nevis - National Conservation

and Environment Protection (Amendment) Act,1996 (St Christopher and Nevis) (No. 12 of 1996)

Trinidad and Tobago - ENVIRONMENTALLY SENSITIVE SPECIES RULES, 2001 .

Trinidad and TobagoENVIRONMENTALLY SENSITIVE

SPECIES RULES, 2001 - Section 3.(1) The Authority may by Notice designate as an ESS an animal or plant - that is required to be protected for the purpose of meeting the Government’s international obligations under any of the International Conventions referred to in Schedule I;

Schedule 1The Convention on International Trade in Endangered Species of

Wild Fauna and Flora which entered into force in Trinidad and Tobago on April 8, 1984 (the CITES Convention)

(ii) The Protocol concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region which entered into force in Trinidad and Tobago on January 18, 1990 ( the SPAW Protocol);

(iii) The Convention on Wetlands which entered into force in Trinidad and Tobago on April 21, 1993 (the Ramsar Convention, Iran, 1971);

(iv) The United Nations Convention on Biological Diversity which entered into force in Trinidad and Tobago on August 01, 1996 (the BIODIVERSITY Convention);

(v) Any other international legal convention relating to the environment to which Trinidad and Tobago is a party.

Parliamentary Involvement in MEA Negotiation in Antigua and Barbuda

In Antigua and Barbuda, the Ratification of Conventions Act gives Parliament a role in treaty ratification.

Before MEAs and other treaties can be considered legally binding on the State they must be approved by Parliament.

Utilised in the following mannerWHEREAS the Ratification of the Treaties

Act, Cap. 364 provided in section 3(1) that where a Treaty to which Antigua and Barbuda becomes a party is one which affects or concerns the relationship of Antigua and Barbuda with any international organization, agency , association or similar body, such Treaty shall not not enter into force with respect to Antigua and Barbuda unless it has been ratified or its ratification has been authorized or approved in accordance with the provisions of the Act;

Justice Anderson Guidelines – Passage of Implementing LegislationEnsure the passage of implementing or enabling legislation

prior to final acceptance or ratification of the MEA.

Provide for the acquisition and retention of suitable drafting skills and expertise.

Where necessary, accept/solicit, as appropriate, assistance with the drafting of implementing legislation from the Secretariat of the Convention and/or from competent international global and regional organizations.

Consider the relative merits of legislation that implement by re-enactment as compared with legislation that implement by reference.

Justice Anderson Guidelines – Passage of Implementing Legislation (cont)Where because of limited resources, exigencies of time,

or other reasons, passage of full implementing legislation is impractical, consider utilization of the abbreviated form of incorporation by reference illustrated by the National Conservation and Environmental Protection Act (Amendment) 1996 of St. Kitts and Nevis.

Combine, as appropriate, the methods of implementation by re-enactment and reference

Ensure that the implementing legislation is consistent with and fulfills the MEA obligations.

Ensure that implementing legislation creates any required institutional, administrative and policy-making arrangements.

Justice Anderson Guidelines – Passage of Implementing Legislation (cont)Ensure that implementing legislation provides for all

appropriate administrative tools and mechanisms.

Ensure that the implementing legislation provides adequate penalties and incentives to foster compliance with the MEA. CBD – Specific provisions on Incentive Measures

Provide that in the event of conflict between the domestic legislation and the MEA, the MEA should prevail unless the relevant Minister, by formal procedure, provides expressly to the contrary.

Justice Anderson Guidelines – Passage of Implementing Legislation (cont)Ensure that the courts are expressly

empowered to take judicial notice of MEAs that have been incorporated into domestic law.

Ensure that implementing legislation is revised and updated to keep pace with amendments to the treaty regimes that have been accepted by the state.

References International Agreements and their impact on domestic legislation @

http://www.nepa.gov.jm/symposia_03/Papers/InternationalEnvironmentallaw.pdf  THE ROLE OF ENVIRONMENTAL LAW WITHIN THE FRAMEWORK OF

SUSTAINABLE DEVELOPMENT @ http://www.ttenvironmentalcommission.org/speechadd/Presententation%20in%20JamaicaTHE%20ROLE%20OF%20ENVIRONMENTAL%20LAW%20WITHIN%20THE%20FRAMEWORK%20OF%20SUSTAINABLE%20DEVELOPMENT%202.pdf 

Bhandari, Surendra, International Environmental Instruments (2011). Available at SSRN: @ http://ssrn.com/abstract=1736402

  DOMESTIC PROGRAMS FOR IMPLEMENTING MULTILATERAL

ENVIRONMENTAL AGREEMENTS: ESTABLISHING MEA IMPLEMENTATION MECHANISMS Dr. ANDERSON, WINSTON Senior Lecturer, Faculty of Law, University of West Indies, P.O. Box 64,St. Michael, Barbados, Tel: (246) 417-4226 @ http://www.inece.org/conf/proceedings2/22-DomesticPrograms.pdf

Manual on Compliance with and Enforcement of Multilateral Environmental Agreements @ http://www.oas.org/dsd/Tool-kit/Documentos/ModuleVdoc/Enforcement%20of%20MEAs.pdf

Questions and Comments

Thank you.