Improving National Enforcement for Better Governance Implementing Multilateral Environmental Agreements
Emory, Richard W., Jr., Denver Journal of International Law and Policy
On the topic of improving national enforcement as a key tool to better governance under multilateral environmental agreements (MEAs), I have the honor to offer this short paper of recommendations. The views expressed here are entirely my own and do not represent those of United States Environmental Protection Agency (USEPA) or the U.S. Government. While I regret that I am unable to attend the meeting, I hope that this paper will contribute to useful discussion and outcomes.
Here I address "enforcement" by national governments applying national law against regulated enterprises (including "persons" of any type) to achieve compliance with national law to implement MEA obligations. More specifically, I recommend steps by which (1) Conferences of the Parties (COPs) to MEAs and (2) MEA Secretariats may support and strengthen "enforcement" by national governments to this end. (I do not address related topics such as assuring "compliance" by national governments with their MLA obligations, the role of the WTO, international law, or trade measures.)
In what follows, sections I-III describe structural and institutional measures to enable MEAs to better support national enforcement. In addition, for the topic of import/export control, section IV offers a number of solutions addressing mostly systems, process, and operations.
I. ESTABLISH AN ENFORCEMENT COMMITTEE OF THE PARTIES
If the Parties to a MLA have the vision or goal that as national governments they want more MLA enforcement, the Parties should form an Enforcement Committee of the Parties. National representatives to Enforcement Committees of the Parties should be persons who have had hands-on, on-duty enforcement experience. This means that their expertise and identities should not or will not be the same as that of:
* The high-level policy makers who are the National Focal Points for MEAs,
* Persons who serve on chemical-selection, wildlife-listing, and other such committees where scientific research, environmental monitoring, and standard setting are done, or
* Persons, often with diplomatic or trade expertise, who serve on Compliance Committees and address on a state-to-state basis questions of national compliance and the application of MLA compliance-assurance mechanisms to other nations.
While an Implementation Committee of the Parties may address enforcement, "implementation" is a very broad word, and Implementation Committees have not produced sufficient progress in enforcement. The most undiluted, immediate, and effective enforcement results will be obtained by forming Enforcement Committees of the Parties.
II. HIRE MORE STAFF WITH ENFORCEMENT EXPERIENCE
If the secretariat of a MLA has the vision or goal that, as an international civil servant, he or she wants to support more MLA enforcement, hire staff with the relevant experience. Such personnel would not enforce. They would credibly interact with and support national authorities actually doing the enforcement. MLA secretariats staffed with more enforcement experience should proactively propose and (within their authority) take supportive actions, and raise issues of enforcement policy for decisions by Enforcement Committees of the Parties and by COPs.
III. DESIGNATE AND EMPOWER ONE UNIT OF UNEP TO BE THE COORDINATING LEAD INTERNATIONAL AGENCY FOR SUPPORT TO NATIONAL ENFORCEMENT
If the United Nations (UN) system and the COPs of the MEAs have the vision or the goal that MLA enforcement should be more synergized, collectively designate one unit of UNEP to be the coordinating lead agency for cross-cutting enforcement issues affecting all or many MEAs. The unit that is "UNEP Lead for MEA Enforcement Support" will need some new (but limited) powers and duties, including:
* Institutional responsibility for ongoing work to address and offer synergistic solutions to improve national enforcement and international cooperation supporting it for MEAs,"
* Authority to convene and to present for consideration new, systematic approaches, and some new means to encourage integration as may be needed among currently quite autonomous individual MEA secretariats, and
* Representational authority to meet regularly with InterPol, the World Customs Organization (WCO), the U. …