Problems with Compliance with the Barcelona Convention and it

Related Protocols

NILUFER ORALISTANBUL BILGI UNIVERSITY

LEGAL ASPECTS OF THE BARCELONA CONVENTION AND ITS RELATED PROTOCOLS

ATHENS 26-27 OCTOBER 2006

THE CONCEPT OF COMPLIANCE UNDER INTERNATIONAL LAW

What is compliance under international law?

Vertical structure under domestic/national compliance structures versus horizontal structure of international law

How to promote compliance?

THE CONCEPT OF COMPLIANCE UNDER INTERNATIONAL LAW What should “compliance” mean for the

Barcelona Convention and its related Protocols? Legal compliance? Quantitative/Technical compliance? Eg. 100%

submission of reports Qualitative compliance?

Mediterranean Sea is de-polluted? Halting of all loss of biodiversity? Zero emissions? Zero dumping of all hazardous substances?

MAKING INTERNATIONAL ENVIRONMENTAL LAW WORK

Implementation Compliance Enforcement

IMPLEMENTATION

1. Negotiation of MEAs-pre-negotiation- during- post

2. Applying the MEAMechanism for implementation include ad hoc conferences permanent institutional structures

conference of the parties (CoPs) Permanent Secretariats and budget

IMPLEMENTATION Implementation of international environmental

agreements employ various techniques and methods to achieve the objective of the instrument.

The agreement may provide for the overall framework leaving the details of implementation to Protocols and other agreements, or in some cases may actually provide for the technique or method to be used by the Parties.

These include the adoption of regulatory mechanisms, EIAs, licensing and permits (eg. dumping, fishing), monitoring and surveillance, best environmental techniques or practices, standard setting (eg. emissions, pollution levels), restrictions and bans (eg. dumping), use regulations (eg. protected areas) and others.

COMPLIANCE The goal of compliance is to promote the optimal

implementation of the objectives of the MEA and the obligations undertaken by the Parties.

Important to evaluate and assess whether the full implementation of the MEA is producing the desired result.

Compliance mechanisms do not address the narrow issue of simple adherence to the obligations under the MEA but also operate to further the result that is sought to be achieved: for example, the reduction of land-based pollution.

Methods to assess the effectiveness of the MEA requires a means to monitor, report results and assess these results. In this regard, compliance serves to both increase knowledge of environmental data as well as produce an end result of improvement of the condition

COMPLIANCE MECHANISMS Monitoring Reporting requirements by the States Assessment and Review of Implementation

Indicators / measurements Compliance verification

By Committee Secretariat Independent means (eg. NGOs)

Non-compliance mechanisms Adversarial Supportive Other:

Role of the Public (eg. Public complaint procedure)

Role of the Judiciary

1. MONITORING Monitoring involves the collection and sharing of research

and data: to promote compliance the exchange of scientific data

and other indicators of compliance play an important role in the overall compliance mechanism.

The quality of the data is important and for this reason open exchange and transparency is equally important.

Monitoring and surveillance, if properly conducted can provide the valuable scientific data and information to serve as a basis for regulations, laws and policy-making.

For example, the 1992 OSPAR Convention provides for a specific definition of what monitoring is as “the repeated measurement” of the quality of the environment and each of its compartments, the activities or natural and anthropogenic inputs that may affect the quality of the environment and the effects of such activities. (Annex IV, art. 1).

2. REPORTING Reporting requirements by the States: Reporting is a

critical part of international environmental agreements as it provides essential information on actions, results and problems occurring at the national level.

The usual method is for the international instrument to designate or require the designation of a reporting organ that will receive and supervise this process. Reporting can include reporting information obtained from research and data collection, such as sample collections.

For example, scientific data regarding bathing water quality.

Reporting increases transparency which in turn increases the ability to take the necessary measures to protect and preserve the marine and coastal environment. Reporting can also include information regarding national legislation and regulation of activities.

3. ASSESSMENT & REVIEW Assessment and Review of Implementation. These

are also part of the reporting requirements. By making reports and reviews available Parties or interested organizations can assess the extent of implementation and progress made towards implementation and realizing the goals established.

Establishing a set of indicators that will provide reliable information on the progress being achieved in implementation of the MEA is important

These indicators than serve as the basis for assessing and reviewing compliance. The assessment and review can be done in different ways:

Conference of the Parties: Example, the Climate Change Convention

Panel of Experts: Example the Montreal Protocol Commission: Example the CCAMLR (has management powers

to facilitate nations to comply with the treaty requirements

4. VERIFICATION Compliance verification: This process concerns the verification

of data and technical information to aid in the assessment process of compliance. Furthermore, in the possible case of non-compliance verification can provide information as to the degree and frequency of non-compliance.

Some international environmental agreements employ an external verification process that conducts reviews of the Parties and compliance. For example, the OECD conducts independent reviews of the environmental performance of its member states. The Ramsar Convention on Wetlands of International Importance especially Waterfowl Habitat, for example, provides for a commission, which upon the consent of the State, will conduct a field visit with a member of the Secretariat and experts, and submit a report with recommendations. The procedure is to provide assistance and facilitate implementation of the Convention in the country which may be experiencing difficulties.

NGOs can play an important role in verification. Eg. Greenpeace in whale reporting to the ICWR.

5. NON-COMPLIANCE Non-compliance mechanisms: MEAs may include

non-compliance mechanisms, although many do not. The non-compliance mechanism can take various forms, such as the establishment of a body, which could be a compliance committee.

Non-compliance mechanism can also serve the function of an “early warning” system and serve in facilitating compliance.

Non-compliance mechanisms can be non-confrontational as a means of facilitating and promoting compliance and assist the parties in understanding their obligations on the MEA and in this way avoid disputes amongst the Parties.

ENFORCING COMPLIANCE AT THE INTERNATIONAL LEVEL

The different means of securing compliance with MEAS includes:

1. Regulatory: Agency supervised 2. Diplomatic means 3. Consultation 4. Judicial Remedies 5. Compulsory and Binding Proceedings

FINANCING An important component for a successful

compliance mechanism requires adequate funding. Such funding can either be obtained through outside institutional funding such as GEF or the World Bank, or a system of self-financing may be established through a fund (eg. Kyoto Protocol, Montreal Protocol on Ozone Depletion or the Civil Liability Convention)

DIFFERENT COMPLIANCE MECHANISMS UNDER EXISTING MEAS

1. AARHUS CONVENTION2. KYOTO PROTOCOL3. MONTREAL PROTOCOL TO THE

UNFCCC

AARHUS CONVENTION:

Innovative aspects of the compliance mechanism: The Compliance Committee is made up of 8 independent experts

and not State Parties. Members express their own personal opinions and do not represent a government.

Members of the Committee are nominated by Parties and Signatories and also by NGOs within art. 10 para 5

Compliance Committee accepts not only submissions of the Parties and referrals from the Secretariat but also communications from the Public (Art. 15)

Transparency: Submissions found to be admissible are open to the public and posted on the UNECE website. Almost all information in the Compliance Committee is open unless falls within narrow confidentiality exception in Convention. Committee meetings are open to the public.

Compliance Committee makes recommendations on submissions but it is the MOPS who make the final decision.

KYOTO PROTOCOL

The compliance mechanism established by the Kyoto Protocol was based on article 18 of the Convention on Climate Control by the COPs which approved the regime in 2001 (COP-7).

The compliance committee of Kyoto began to function in March 2006. The purpose of the compliance mechanism is “to facilitate, promote and enforce compliance with the commitments of the Protocol.”

The Kyoto Protocol compliance regime created a unique structure creating two different branches of the Committee: the facilitative and the enforcement branches.

The Kyoto Protocol builds upon and enhances the Climate Change Convention. It establishes binding emission limitations and reduction commitments in its Annexes. The Protocol employs an innovative flexible mechanism that allows for the trading of emissions to meet these reductions

It also provides for penalties

KYOTO PROTOCOL

Implementation of Kyoto is based on three pillars 1. Accounting, reporting and review. Non-

compliance based on CP report 2. Mechanism to assist parties to meet their

obligations. If all measure are taken domestically may not be economically feasible.

3. Compliance Three stages of the Compliance Committee Pre-commitment period 1st Commitment period 2015—compliance assessment Procedures and mechanism for Compliance (2005

adopted)

KYOTO PROTOCOL

The structure of compliance committee: Plenary:

Facilitative Branch that promotes implementation of P and commitment:

Provides advice to Parties. Provide early warnings Advise technical and financial assistance Its decisions are final and cannot be appealed

Enforcement Branch: Responsible for determining non-compliance with commitments.

Enforcement Brach will review any dispute as to calculations made by the technical committee. Enforcement can suspend eligibility Enforcement can issue trading prohibitions and impose sanctions that include deducting 1.3

tons from its allotment for each ton exceeding its target. The mechanism further provides for an appeal procedure by the

UNFCCC COP which serve as the Protocols MOP. However, the decision of the Compliance Committee remains in force and only by a decision of ¾ majority of the COP/MOP can the Committee decision be overturned.

KYOTO PROTOCOL

Each Committee has a Chair and a Vice-chair. The Committees consists of 40 persons (20 members and 20 alternatives) who serve in their individual capacities.

The Compliance Committee has met three times and the Facilitative Committee has met just once upon a submission on South Africa.

The UNFCCC has also established three funds (two under the UNFCC and one under the Kyoto Protocol) to promote compliance by developing countries by providing financing for technology transfer, the preparation of national programs.

The Kyoto Fund is unique as it is funded by both voluntary contributions as well as 2 percent of proceeds from certified emissions reductions by the clean development mechanism under article 12, in effect creating a tax on business transactions that would be used to finance an MEA environmental fund .

MONTREAL PROTOCOL TO THE OZONE CONVENTION Provides for an Implementation Committee. The Protocol also provides for a system whereby a Party can report

its own inability to comply, or other Parties can report non-compliance with corroborating information of other state parties.

The Implementation Committee may request further information and even conduct on-site information gathering.

The Committee reports its findings to the MOPs including any recommendations. The report is to be provided to the Party six weeks in advance of the MOPs. The MOPs may take decisions of measures to be taken to ensure full compliance.

An example took place in 1995 when the Russian Federation, Belarus, Bulgaria, Poland and Ukraine submitted a joint statement to the Implementation Committee that because of economic problems that they might not be able to be in compliance with the Protocol in 1996. The Implementation Committee conducted consultations and prepared draft recommendations that were submitted to the MOPs. The recommendations included international financial assistance and the submission by Russia of annual reports on progress in phasing out ozone depleting substances.

OTHER MEAs

MEAs that provide for an express compliance mechanism include: Art. 34 of Cartagena Art. 17 of the Rotterdam Convention on Prior Informed Consent Procedure for Certain

Hazardous Chemicals and Pesticides in International Trade Art. 17 of the Stockholm Convention on POPs Art. 14bis of the Espoo Convention on EIA in a Transboundary Context MEAs that do not contain an express provision for Compliance mechanism but

provide for alternative means: LRTAP Convention authorizes the Executive Body to establish a compliance mechanism Basel Convention does not provide for a specific authorization for the establishment of a

compliance mechanism but at the sixth session of the CoPs they created a compliance mechanisms (Decision VII/12 “Establishment of a mechanism for Promoting implementation and compliance”) based on the obligation of the CoPs to review the effective implementation of the Convention in Art. 15(5)(e)

Convention for the Protection of the Alps and its Protocols similar to the Basel Convention through the CoPs decided to establish a compliance mechanism based on Art. 6 that permits the CPs to establish permanent WGs when deemed necessary for the implementation of the Convention.

CITES CONVENTION FOR BIODIVERSITY 1982 LOSC OTHERS

UNEP GUIDELINES ON COMPLIANCE

In 2003 UNEP adopted a set of Guidelines on Compliance and published an 800+ pages manual.

UNEP GUIDELINES ON COMPLIANCE The UNEP Guidelines on Compliance with and

Enforcement of MEAs define “compliance” as “the fulfillment by the contracting

parties of their obligations under a MEA and any amendments to the MEA.”

“Implementation as “all relevant laws, regulations, policies and other measures and initiatives, that contracting parties adopt and/or take to meet their obligations under a multilateral environmental agreement and its amendments is any.”

UNEP GUIDELINES ON COMPLIANCE According to the UNEP Guidelines, an important

foundation for creating an effective compliance mechanism one that will “facilitate” compliance with MEAs begins at the negotiation stage. Ideally, there should be :

(a) a regular exchange of information among States; (b) consultations in between negotiation sessions on

potential problem issues for compliance; (c) workshops on compliance; (d) coordination at inter-governmental levels in

developing national positions and; (e) avoid overlaps with existing MEAs.

UNEP GUIDELINES ON COMPLIANCE The UNEP guidelines recommend the following

approaches to enhance compliance: Clarity of the obligations in the MEA National implementation plans could be included that

provide for monitoring and evaluation mechanism to assess whether the MEA is improving environmental conditions

Reporting: Parties can be made to make “regular, timely reports on compliance” using a common format. Reporting can also promote public awareness. UNEP guidelines caution that reporting requirements not be too onerous and that they are coordinated with other MEAs.

Monitoring: according to the guidelines involves the collection of data that can be used to assess compliance.

UNEP GUIDELINES ON COMPLIANCE Verification: Verifying data and information to see if

Party is in compliance. Can include cross-checking data from different sources.

Non-compliance mechanism: Does not have to be punitive or adversarial but can operate as a safeguard, or a system to clarify to provide compliance support

Dispute settlement provisions: In principle dispute settlement provisions should complement compliance mechanism. A number of methods can be employed including good offices, mediation, conciliation, fact-finding commissions, dispute resolution panels, arbitration and other judicial remedies.

UNEP GUIDELINES ON COMPLIANCERecommendations for national implementation through national measures: Compliance assessment Compliance plan Law and regulatory framework National implementation plans Enforcement Economic instruments National focal points National coordination Efficacy of national institutions Major stakeholders Local communities Women and youth Media Public awareness Access to administrative and judicial proceedings Capacity building may also be needed for countries lacking the human and technical

resources.

BARCELONA CONVENTION AND ITS RELATED PROTOCOLS

Convention for the Protection and Development of the Marine Environment and Coastal Region of the Mediterranean Sea (Barcelona Convention), Barcelona, 1976 (as amended in 1995)

Protocol for the Prevention and Elimination of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea, as revised in 1995, (in force as of 2004)

Protocol on the Protection of the Mediterranean Sea against Pollution from Land-Based Sources (LBS Protocol) ) (In force as of 17 June 1983

The LBS Protocol was amended as the “Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities “ which was on 7 March 1996 but has not yet entered into force

Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPA and Biodiversity Protocol) (entered in force as of 12 December 1999 - replacing the Protocol concerning Mediterranean Specially Protected Areas adopted on 3 April 1982 (Geneva, Switzerland), entered into force on 23 March 1986.

COMPLIANCE MECHANISM UNDER THE BARCELONA CONVENTION AND ITS RELATED PROTOCOLS

Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency,

Combating Pollution of the Mediterranean Sea (Prevention and Emergency Protocol) (in force as of 17 March 2004 - replacing the Protocol Concerning Cooperation in Combating Pollution of the Mediterranean Sea by Oil and other Harmful Substances in Cases of Emergency adopted on 16 February 1976 (Barcelona, Spain), entered into force on 12 February 1978

Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil (Offshore Protocol) ,Date adopted: 14 October 1994 (Madrid, Spain) Not yet entered into force

Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal (Hazardous Wastes Protocol) Date adopted: 1 October 1996 (Izmir, Turkey),Not yet entered into force

MAP II (1996 – 2005) MAP III (2006- 2015)

OBLIGATIONS OF IMPLEMENTATION OF THE BARCELONA CONVENTION

REVISED BARCELONA CONVENTION

Article 4 of the Convention sets out the “general obligations” which in summary are:

Article 4 (1) requires the Contracting Parties (CPs) to either individually or jointly to take measures in accordance with the Convention and Protocols to “prevent, abate, combat and to the fullest possible extent eliminate pollution in the Mediterranean Sea Area and to protect and enhance the marine environment in that Area so as to contribute towards its sustainable development”

Article 4(2) requires the CP pledge themselves to take appropriate measures to implement the Mediterranean Action Plan and to pursue the protection of the marine environment and the natural resources…. And meet the needs of present and future generations in an equitable manner. Further, the CPs are to take into account the recommendations of the Mediterranean Commission on Sustainable Development in implementing objectives for sustainable development.

Article 4 (3) …the CPs shall: …in accordance with their capabilities, apply

the precautionary principle apply the polluter pays principle undertake environmental impact assessment promote cooperation among states in EIA for

activities that are likely to have significant adverse effect on the marine environment of another State or areas beyond the limits of national jurisdiction

commitment to promote integrated coastal zone management

Article 5 Pollution by Dumping: CPs shall take appropriate measures to prevent, abate and to the fullest extent possible eliminate pollution from the Mediterranean Sea caused by dumping from ships and aircraft or incineration

Article 6 Pollution from Ships: CPs shall take all measures in conformity with international law to prevent, abate and to the fullest extent possible eliminate pollution from the Mediterranean Sea caused by discharges from ships and to ensure the effective implementation in that Area if the rules which are generally recognized at the international level relating to the control of this type of pollution.

Article 7 Pollution from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil: CPs shall take all appropriate measures to prevent, abate and to the fullest extent possible eliminate pollution from the Mediterranean Sea resulting from exploration and exploitation of the continental shelf and the seabed and its subsoil.

Article 8: Pollution from Land-based Sources: CPs shall take all appropriate measures to prevent, abate and to the fullest extent possible eliminate pollution from the Mediterranean Sea and to draw up and implement plans for the reduction and phasing out of substances that are toxic, persistent and liable to biaccumulate arising from land-based sources. These measures shall apply

(a) to land-based sources originating within the territories of the Parties, and reaching the sea:

Directly from outfalls discharging into the sea or through coastal disposal;

Indirectly through rivers, canals or other watercourses, or through run-off

to pollution from land-based sources transported by the atmosphere

PROTOCOL FOR THE PREVENTION OF POLLUTION IN THE MEDITERRANEAN SEA BY DUMPING FROM SHIPS AND

AIRCRAFT (DUMPING PROTOCOL)

Article 4 prohibits the dumping of wastes or Annex I substances in the Mediterranean Sea area and

Article 5 requires a prior special permit for the dumping of Annex substances and only after careful consideration of Annex III factors.

Article 6 provides that for all other substances not falling within the above provisions be subject to a general permit before dumping into the sea is allowed.

Article 8 provides for an exception in the case of force majeure Article 10 requires that each of the Parties designate a

competent authority and that records be kept of the nature and quantities of the wastes permitted to fumped as well as the location, date and method of dumping.

this.

PROTOCOL FOR THE PREVENTION OF POLLUTION IN THE MEDITERRANEAN SEA BY DUMPING FROM SHIPS AND AIRCRAFT

(DUMPING PROTOCOL What are the compliance requirements ? Reporting: Under the Protocol all CPs must report all permits for

dumping granted to the MEDU, and dumping allowed without a permit due to reasons of force majeure must be reported immediately to the MEDU.

MOPs: Every two years in conjunction with ordinary MOPs of the Convention. Duty is to :

Keep under review the implementation of the Protocol and to consider the efficacy of the measures adopted and the need for any other measures;

Study and consider the records of permits issued of the dumping that has taken place

Review and amend the Protocol as needed Discharge any other functions as may be appropriate for the

implementation of the Protocol Comment: The compliance mechanism provided within the Protocol

itself is general and simply requires the minimum review by the MOPs. There is no mechanism provided that would actually promote, facilitate or pressure compliance by the Parties to report. This is left to the operation of the MOPs.

The Ninth CoP recommended that CPs send annual reports to the MEDU. However as this is not legally binding CPs do not do

Protocol on the Protection of the Mediterranean Sea against Pollution from Land-Based Sources

(LBS Protocol) Article 1 The Parties are obliged (“shall”) to take “all appropriate measures to

prevent, abate, combat and eliminate to the fullest possible extent pollution in the Mediterranean Area caused by discharges from rivers, coastal establishments or outfalls, or emanating from any other land-based sources of activities within their territories, giving priority to the phasing out of inputs of substances that are toxic, persistent and liable to bioaccumulate”

Article 5 establishes further obligations which include inter alia: 1. Eliminate land-based pollution 2. Elaborate and implement, individually or jointly, national or regional actions

plans with measures and timetables for their implementation 3. Use of the best available techniques and environmental practices in

these plans [Annex IV] 4. Preventative measures to reduce to a minimum the risk of accidental pollution Article 15 expressly provides that a 2/3rd majority decision by a MOPs for

adoption of a short-term and medium-term regional action plans containing measures and timetables. These are to be notified by MAP to all the Parties.

Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPA and

Biodiversity Protocol) Article 3 established the general obligation of the Parties to take

the necessary measures to: (a) “protect, preserve and manage in a sustainable and

environmentally sound way areas of particular or cultural value, notably by the establishment of specially protected areas; (b) “protect, preserve and manage threatened or endangered species of flora and fauna.

Included in this obligation is the duty of the Parties to: Identify and compile inventories of the components of

biological diversity important for its conservation and sustainable use

Adopt strategies, plans and programmes for the conservation of biological diversity and sustainable use of marine and coastal biological resources and integrate these into their relevant sectoral and intersecortola policies

Monitor the components of biological diversity and identify processes and categories of activities that have or are likely to have a significants diverse impact on the conservation and sustainable use of biological diversity and monitor their effects

Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPA and

Biodiversity Protocol) Article 5- There is no affirmative duty to establish protected

areas “SPAMIs” Article 6- However, if a CP decides to do so the Protocol

provides for a number of duties and recommendations. Articles 7-8-9-10 apply to SPAMIs established However, Article 11 of the Protocol does provide for affirmative

duty for the CPs to take actives measures to protect flora and fauna such as management, compile lists of endangered species, prohibit activities such as the killing or taking.

REPORTING? Article 23 only requires reporting for :

The status of SPAMIs Changes in delimitation or legal status Possible allowed exemptions (arts. 12/18)

Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPA and

Biodiversity Protocol)

MOPs?

Article 26- Every 2 years Review implementation of the P. Oversee the work of the Organization and related Center Adopt guidelines and common criteria [Article 16 Spami] Consider article 23 reports Make recommendations to the CP Examine Focal Point recommendations Decide on inclusion of a SPAMI on the list Any other matter COMMENT: NO COMPLIANCE PROMOTION MECHANISM. VERY

PASSIVE APPROACH.

Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the

Mediterranean Sea (Prevention and Emergency Protocol It is the only Protocol which provides for a reporting

mechanism. REMPEC acts as the regional Center to which reports are submitted and which relays these reports to MEDU of MAP. MEDU reports to the CPs on matters related to the Protocol.

Comment: The Euromed Cooperation on Maritime Safety and prevention of pollution from ships [SAFEMED] Project in 2004 with funding from the European Commission represents a joint initiative between the MAP countries and the European Union to address the problem of vessel source pollution. This project aims to remove the discrepancies in the implementation of IMO instruments by Mediterranean Sea countries. It is an interesting example of an inter-regional (EU and MAP) compliance-promoting project. REMPEC is responsible for implementation of the project.

PROTOCOL FOR THE PROTECTION OF THE MEDITERRANEAN SEA AND EXPLOITATION OF THE CONTINENTAL SHELF AND THE SEABED AND ITS SUBSOIL, 1994

Not in effect yet. Post-Agenda 21 Chapter 17 (goal is to end dumping in the oceans) Article 3- General undertakings

Parties obliged either individually, by bilateral or multilateral cooperation take all appropriate measures to prevent, abate, combat, control pollution resulting from activities and ensure use of best available techniques, environmentally effective and economically appropriate

Duty is to ensure that activities do not cause pollution (but see Art. 8)

PROTOCOL FOR THE PROTECTION OF THE MEDITERRANEAN SEA AND EXPLOITATION OF THE CONTINENTAL SHELF AND THE SEABED AND ITS SUBSOIL

Criticism Makes the national regulations as a reference for

environmentally sound management of wastes produced during exploration and exploitation and

Allows dumping of oil platforms if not a threat to navigation OSPAR foresees eventual zero discharge and does see

platform dumping as a last option. OPSAR has detailed monitoring and assessment procedure

INSTITUTIONAL ASSESSMENTS The European Environmental Agency Report: The EEA completed an

assessment of reporting requirements of the Barcelona Convention and its Protocols

In its in-depth assessment the EEA found the following to be the “main difficulties” in implementing the reporting obligations mechanism:

Lack of comparable and transparent information. Noting that there was no standard format for compliance with reporting obligations which hinders the Secretariat from compiling information.

Lack of harmonized reporting system: MAP does not have a reporting system for the CPs to comply with, except for the Emergency Protcol

Lack of concrete and precise calendar according to which the Parties should submit their reporting: MAP does not have a specific reporting calendar.

Lack of compliance: The Cps submit incomplete reports and non-compliance with reporting periodicity. Because there is no binding procedure there is no action on the part of the CPs or the Secretariat duing the inerim period while a reporting system is being developed

INSTITUTIONAL ASSESSMENTS

The EEA identified the: Lack of a legal structure to support the MAP. Failure to provide for a specific and detailed framework as to

regulation of how, when and where the CPs have to comply with their reporting obligations, the EEA believes that it can play a close cooperative role.

EEA proposed a formal cooperation between the MEDU and the itself in exchanging experience and know-how and would be able to:

Compile information to support reporting under the Barcelona Convention and its Protocols through a collaboration agreement with the UNEP MAP Co-ordinating Unit and its six regional activity centers

INSTITUTIONAL ASSESSMENTSPRACTICAL PROBLEMS

There is need for improved dissemination of information from UNEP/MAP – an issue may be remedied once the UNEP/MAP Center for Communication and Information is established in Italy (today ERS/RAC) by 2006 - and more efficient participation of the UNEP/MAP partners in the work relating to the Protocols, especially the proposed one on ICAM (Integrated Coastal Zone Management).

Overcoming the language barriers in the region is another issue of priority which significantly hinders the speed by which regional and international policies are implemented at national level.

Limited capacity and funding for NGOs to monitor and report on the many MEAs in addition to the Barcelona Convention and its related Protocols.

COMPARATIVE CASE STUDYHELCOM/BARCELONA HAZARDOUS SUBSTANCES COMPLIANCE STUDY

H. Selin and S. D. Vandeveer, “Hazardous Substances and the Helsinki and Barcelona Conventions: Origins, Results and Future Challenges”, Paper presented at the Policy Forum Management if Toxic Substances in the Marine Environment: Analysis of the Mediterranean and the Baltic, Javea, Pain 6-8 October, 2002

REPORT: HELCOM In 1988 the Parties to the 1974 Helsinki Convention adopted a

Ministerial Declaration on the Protection of the Marine Environment of the Baltic Area of their intention to reduce discharges from point sources of hazardous substances based on the best available technology. They also understood the need for educe non-point sources as well.

The Parties decided that their aim would be to achieve an overall reduction of 50% of the total discharges no later than 1995.

However, by 1995 it was evident that they would not meet the target of reduction of discharges of hazardous substances by 1995.

HELCOM Parties in 1998 adopted Recommendation 19/5 on hazardous substances in which they adopted the goal of: phasing out the discharge of hazardous substances into the Baltic Sea with

the ultimate aim of cessation by 2020 and; reducing concentration in the environment near background values naturally

occurring and close to zero for human-made synthetic substances.

HELCOM HELCOM established a project team from the HELCOM Land-based

Group responsible for the implementation of Recommendation 19/5 with funding from the EU, Sweden and HELCOM.

One of the actions the team took was to reduce the number of hazardous substances in the priority list from 43 to 35.

By 2001 the target of a reduction of discharges of hazardous substances into the Baltic Sea by 35 priority substances had been “largely met.”

The data was based on self-reporting by the Parties by questionnaires that had been prepared by the Team and sent at the beginning in which the Parties had been asked to provide data on discharges of hazardous substances during the 1980s and 1990s. Although, it should be added that one of the underlying causes of the reduction may be attributable to the economic decline in the former Soviet Union countries.

REPORT: BARCELONA According to the Report: Despite multitude of agreements related to hazardous substances

in the Mediterranean Sea, no results were obtained. In response, in 1997 the CPs adopted a SAP for land-based

pollution to build domestic capacity and promote the implementation of the LBS Protocol through national pollution reduction plans.

The goal was the reduction in discharge of all 12 organohalogen substances by the year 2000 in some domestic plans.

However, this was not achieved. The current SAP has developed a phase-out calendar with the

target years of 2005, 2010 and 2025 with the goal of complete phase-out of discharges into the Mediterranean Sea by the year 2025. Targeted substances include organic substances (PAHs, PCBs, HCB, dioxins and furans), heavy metals (eg. mercutu, cadmium, lead, zinc, copper, and chromium), orhanohalogen cmpounds and hazardous wastes.

BARCELONA

The study noted that a continuing problem for the MAP was the failure of the parties to meet their obligations under the Barcelona Convention and its related Protocols.

This, they noted, included reporting on which domestic implementation actions had been taken for hazardous substances.

In 2001 the Parties established a voluntary pilot reporting system, in which seven Parties volunteered.

Overall, the report noted that most Mediterranean countries lack an adequate monitoring system for hazardous substances.

Furthermore, that there is a lack of adequate understanding of the Mediterranean environment and the human health effects of hazardous substances

BARCELONA

The report noted that in the case of HELCOM the states in transition had met the goal of 50% reduction, however noting that economic factors played a role in this. However, an important factor noted was that there was a high level of adherence and compliance with procedural compliance by all the HELCOM Parties, in particular with the reporting requirements (Art. 16).

There was a set of detailed scientific assessments. This made it easier to assess the levels of compliance with substantive

obligations and implementation. Had these measure not been taken there would have been much more

deterioration in the Baltic Sea. Signs of high compliance with substantive obligations were the reduction in concentrations of hazardous substances such as DDT, PCB, mercury and cadmium in the Baltic Sea mammals.

BARCELONA

Whereas, the report observed that in contrast to HELCOM countries, reporting by MAP countries had been “chronically” low,

This made assessment of compliance with substantive obligations and implementation difficult.

Reporting that was made was found to be uneven in coverage and quality.

Overall, the report concludes that environmental accomplishments of international cooperation with the MAP regimes is small and few in numbers and that there is very limited information on the ecological quality related to hazardous substances.

For this reason very few conclusions can be made about compliance. There is virtually no regional data on emissions on the concentration of

hazardous substances

BARCELONA

Despite numerous declarations and laundry lists of needed implementation measures MAP continues to lack comprehensive programs for the implementation of international commitments.

The reasons for this state of affairs can, according to the report, be attributed to a number factors including:

MAPs low budget and the need for more financing; The lack of state organizational capacity in many Mediterranean countries

making environmental protection difficult because the States do not have the necessary obligations to institutionalize and administer domestic and international environmental policy.

The report observes that one of the problems is that most capacity building programs focus on enhancing technical capacity with education and training programs and equipment.

However, there is also a need to develop administrative and implementation capacity. Furthermore, the report notes that the Mediterranean Sea lacks strong leadership countries in contrast to the Baltic Sea.

While the EU can be considered as a leader the problem according to the report is that the EU Mediterranean Countries are weak in contrast to their counterparts in the Baltic.

The Baltic has succeed in making a strong institutional linkage between the EU and HELCOM which ahs not been achieved for the MAP.

Why as HELCOM been more successful in achieving greater compliance than

MAP?

The report gives two reasons: 1. HELCOM has had more successful assessment programs and studies have

shown that the better the implementation review the higher the implementation rates. Implementation review serves to a. highlight state capacities b. transparency c. increase knowledge and awareness

2. HELCOM’s scientific and policy activities are closely linked with HELCOM’s scientific and technical assessment so that assessment is explicitly framed within terms of policy relevance. Consequently, Baltic scientific assessment effect regional and domestic policy making. Whereas, MEDPOL research and assessment seems ti have very limited impact on MAP policy-making.

CHALLENGES The report lists seven challenges for the management of

hazardous substances 1. Encouraging ratification 2. Engendering implementation and building state

capacities 3. Financing cooperation 4. Improving data availability, quality and comparability 5. Strengthening existing regulations and incorporating

new issues 6. Assessing and achieving environmental improvements 7. Coordinating international management of hazardous

substacnes

CONCLUSION/RECOMMENDATIONS Need to reassess the issue of implementation and

compliance- why unsuccessful? Establish clear and realistic objectives Engage public Build finance resources Need to create a culture of compliance at internat’l and

nat’l levels Compliance mechanism should work to both facilitate,

support and only if all else has failed to institute some form of “dispute settlement”

Support NGOs with training as to serve as monitors Build judiciary awareness at nat’l level Build administrative capacity

THANK YOU