Workshop 3: Networking to Improve Enforcement Cooperation

3A - Water Resource Management: Governance to Eliminate Poverty
Facilitators: Romina Picolotti, Center for Human Rights and Environment; Barry Hill, US EPA; Cesar Natividad, Philippines

Draft Summary: This workshop emphasized the vital importance of water and the need for a general consensus that access to clean, healthy, and adequate water is a basic human right -- individual and collective. In the context of this basic human rights issue, this workshop discussed the opportunity to build bridges with the international human rights community (such as the special rapporteurs of the Human Rights Commission), the world's religious communities, and others about the importance of water.

The workshop explored a number of country-specific examples of dealing with the challenges of water protection, water allocation, and water management and then discussed opportunities for INECE to advance global efforts. Specifically, the workshop felt that the core competencies of INECE should be targeted to water issues in several important ways. First, all (or most) INECE activities and products (such as indicators, conference programs, and training materials) can feature water examples.

Additionally, and importantly, two major competencies of INECE were featured: compliance and enforcement expertise and networking capabilities. The workshop recommends that INECE bring its compliance and enforcement expertise to bear on the full range of water issues, going beyond water quality/pollution to include integrated water management, water allocation, and long-term water planning (including related land use planning). The participants observed that compliance and enforcement tend to be more fully developed in the pollution area and that overall water management programs need special attention.

The workshop also recommends that INECE bring its networking expertise to the water area in several ways. These include improving the dialogue with the human rights community, serving as an information repository for best practices in the water standard setting and integrated water management planning areas, and providing available information about privatization of water supply, wastewater treatment, and other high-value water issues..

Workshop 3B: Vessel Pollution
Facilitators: David Uhlmann, US Department of Justice and Katia Opalka, Commission for Environmental Cooperation

Draft Summary: The work group opened the session by framing the definition of vessel pollution. It includes: 1. accidental oil spills; and 2. waste generated on board and discharged from the ship in violation of international treaty, such as MARPOL.

Canada has concluded that its Atlantic Coast suffers an amount of oil discharge equivalent to the Exxon Valdez annually. Canada has proposed legislative amendments to its migratory bird treaty act to extend its jurisdictional reach up to the Exclusive Economic Zone (200 miles). The proposed bill allows enforcing authorities to board ships in this zone. It also mandates that all ports have adequate facilities to accept waste from ships.

The work group then focused its attention on what's working to control vessel pollution, the challenges enforcement officials confront, and recommendations for improving the effective enforcement of vessel pollution.

What's working
1. There is an existing treaty, MARPOL, which establishes the base.
2. In most countries, domestic laws have been passed to implement MARPOL.
3. There have been some prosecutions and appropriate sentences.
4. There is international interest, as well as efforts like Interpol's Project Clean Seas.
5. There is massive public support.

Challenges
1. There is a powerful worldwide industry coupled with a long history of ineffective self-regulation.
2. There is limited, or no, flag state enforcement.
3. Most discharges occur on the high seas, making them difficult to detect.
4. Evidence is hard to gather.
5. Investigations can be expensive, especially if they involve holding ships at port.
6. Training of ships' crews on best management practices is inadequate.
7. There is a lack of adequate disposal facilities at ports.

Recommendations for INECE
1. Strengthen domestic laws everywhere, especially addressing extending jurisdiction to the Exclusive Economic Zone and strengthening extradition treaties, whistleblowing provisions, and criminal culpability of captains, corporate officers, directors, and agents.
2. Improve evidence gathering -- like use of satellite technology and sharing of information.
3. Build capacity for investigators and regulators.
4. Facilitate information sharing -- including data bases and information on leads.
5. Develop best practices manual for investigations.
6. Participate at the International Maritime Organization.
7. Promote the increased availability of on-shore disposal facilities.
8. Eliminate the concept of flag states of convenience.
9. The most important recommendation, according to the group, is public education. Partner with NGOs concerned with wildlife and pollution to develop a strategic public relations and education campaign to alert people to the massive scope of the problem.

3C - Hazardous Waste at Ports
Facilitators: Robert Heiss, US Environmental Protection Agency and Henk Ruessink, The Netherlands, VROM-Inspectorate / IMPEL-TFS

Draft Summary: The workshop began with brief presentations by the facilitators. Following the presentations, the workshop participants discussed the challenges of limiting illegal trade in hazardous wastes.

There was a consensus about the importance of the problem of wastes, both general and hazardous. There is a difference in awareness, with countries of the European Union and North America relatively aware of their problems and with many other countries unsure if they have a problem, because many of the waste imports and exports are not known. There was consensus that the problem of wastes is a common problem, and therefore everybody subscribed to the necessity of exchanging information. There should also be a greater awareness of the problem worldwide. We have to convince our governments and parliaments about the importance this problem and emphasize that there are efforts to craft a long term solution.

For the short term, there are some needs as well. In the first place, the group stipulated that we can put a lot of effort into several kind of databases, but that will take years. Therefore, we recommend just starting at several points in the world. Analyze the main problems for a country or a region and choose a focal point, and then spread the knowledge gained. Other methods for starting are to make shared inspections and to develop best practices.

Of course there is always the problem of definitions, but the workshop concluded that a lot can be done without harmonized definitions.

The workshop recommended that INECE develop a start-up kit (a toolbox) for countries that want to pick up the problem. INECE should also work to raise awareness of the problem around the world. Although we know there will be many challenges in managing the waste issue via INECE, we can be more outspoken to the world and to the media about successes. We do not recommend using "naming and shaming" at this stage of development; the workshop feels it is too early for this method.

3D - Analyzing the Compliance and Enforcement Mechanisms of the Montreal Protocol
Facilitators: Jim Curlin, Division of Technology, Industry and Economics, UNEP and Gilbert Bankobeza, Ozone Secretariat, UNEP

Draft Summary: This workshop explored building capacity for compliance and enforcement in developing countries with regard to the Montreal Protocol; methods for keeping enforcement communities in developed countries engaged in the late stages of implementation; and appropriate roles for INECE.

Recommendations for the role for INECE included:

• INECE should look into how monitoring how much laws are being implemented. The key question is to ask, and this is a prerequisite for enforcement and compliance.
• There is a need to consider cultural issues in setting up infrastructure to delivering environmental outcomes.
• Consider a cultural noncompliance: INECE cannot be prescriptive, but it can put people together to help provide assistance.
• INECE might want to look at the outcome as the indicator, not the tool, so as to account for cultural and governmental differences.

3E - Enforcement of Emissions Trading Programs
Facilitators: Neil Davies, Environment Agency (England and Wales); Chris Dekkers, VROM; and Joe Kruger, Resources for the Future

Draft Summary: The workshop facilitators began the discussion by asking: (1) What role can INECE play in developing a consistent world-wide trading scheme of GHG emissions? and (2) What can INECE do to deliver this?

Participants recommended the following general roles for INECE: Raise awareness and provide information and clarification; Serve as a resource on emission trading activities in different countries; Establish links with other parties involved (accreditation bodies, UNFCCC, IMPEL, etc.); Aim for a balance on general consistency and flexibility in international trading schemes

Participants recommended products that INECE should develop, including:

1. A simple document on elements of emissions trading systems, including FAQs
2. More information on: (a) skills, (b) training requirements, (c) data gathering and sharing, (d) monitoring standards, (e) technical issues, (f) third party verification and regulatory input, (g) sanctions, and (h) costs and financial and environmental benefits (compared to tax systems)
3. A workshop in the near future for practitioners

Related materials: PowerPoint Presentation on the EU Emissions Trading Scheme

3F - Illegal Logging: Regional Strategies for Enforcement Cooperation
Facilitators: Antonio Benjamin, Law for a Green Planet Institute, Brazil and Yvan Lafleur, Environment Canada

Given INECE's character, the group decided to focus the discussion on actions that were beyond the law and that had international repercussions. The group felt that any efforts in the realm of illegal logging that INECE engages in should be limited to targeting large companies that are logging illegally, and whose actions have implications beyond local borders.

The group's concrete proposal was for INECE to hold a workshop on illegal logging enforcement. In the context of INECE, there has never been and international gathering of enforcement experts dealing with illegal logging issues. INECE potentially has the capacity to translate its brown side enforcement knowledge to green issues (for instance, can negotiated compliance agreements that work for pollution also work in the forest sector?) Some ideas about how the workshop should be structured were made:

(1) Around 30 participants, coming from enforcement agencies, ministries, and large NGOs involved in logging enforcement.
(2) Participants should come from both producer and consumer countries
(3) There was some debate about what the criteria for selecting participants should be - the group members offered to come up with lists of suggested criteria and potential participants to INECE

3G - Penalties and Other Remedies
Facilitators: John Cruden, US Department of Justice; Justice Vladimir Pasos de Freitas, Brazil; and Judge Adel Omar Sherif, Egypt

Draft Summary: Varied experiences demonstrate that there is inadequate judicial understanding of environmental law, but UNEP is actively helping build world-wide capacity. Finland and IMPEL have had seminars for judges and prosecutors and the numbers of court cases have subsequently increased. Some agencies do not have experience in seeking criminal cases or civil penalties, while others have dedicated courts or tribunals and prosecutor units. Others have effectively utilized administrative courts. Some innovative judgments include "publication orders" and "environmental service orders."

The various aspects of environmental harm and economic benefit are important to prove, as well as the intent of defendant, to help the judge determine the adequacy of the penalty. We should share best practices for calculating penalties and develop methodologies in advance. The international exchange of information among countries can help develop and strengthen national programs.

More judicial education and support is necessary, and UNEP's work including the judicial training center in Cairo helps meet this need. Countries should consider establishing specialized courts or a mechanism to share information among judges and develop individual expertise. Chief judges and trained judges should help promote the issue to their colleagues to establish credibility in the message, and INECE should help by spreading the information. Prosecutors must be included in the process, both as experts and to improve their own skills. Recognition of excellence is an outstanding motivation, and INECE could create an international award for judicial excellence. Finally, we should seek harmonized approaches in penalties and remedies, particularly for transboundary crimes, so all countries could show the fairness and consistency of their penalty structures.

3H - Multilateral Environmental Agreements: Synergies for Compliance
Facilitators: Carl Bruch, UNEP; Ken Markowitz, INECE; Alberto Ninio, World Bank

Draft Summary: The workshop began with an explanation of the UNEP-INECE indicator project, which focuses on identifying indicators to promote synergies in the implementation of two clusters of topic-related MEAs - one cluster on biodiversity conventions and one on chemical conventions. There was also a preliminary discussion of the definitions of input, output, intermediate outcome, and final outcome indicators.

Participants in the workshop offered a variety of concerns and suggestions, including: (1) it is important to have department heads and decision-makers with a strong interest in doing the project; (2) many departments are involved in the implementation of MEAs, and they do not always coordinate well (or at all) with each other; (3) starting data collection with the MEA Secretariats could provide contacts and focal points in target countries; (4) the implementation plan required by many MEAs could be a good source of information; (5) consider who the ultimate audience is for the indicators; (6) consider at what level of the implementation process we are looking for synergies, and how focused on a sector you want to get; (7) consider creating a body or committee to coordinate collection of all the data.

Suggestions from the group for input indicators included: (1) number of personnel charged with implementation of MEAs, (2) stakeholder identification, (3) number of violations, (4) number of focal points, (5) whether there is support from a high level in the implementing authority, (6) whether and how often non-environmental agencies mention MEAs in their documentation and efforts, (7) financial sources, allocation, and sustainability for compliance and enforcement, (8) whether there is an authority with a clearly delegated responsibility to implement and also to report on the MEA; (9) whether the country has developed and implemented a strategic plan with an associated budget and timeline for implementation of the MEA; (10) whether national legislation, regulations, and/or standards were changed after MEA ratification; (11) amount of technical resources and equipment, and amount of technical assistance and training; (12) whether there is an institutional requirement for horizontal and vertical communication; (13) level of capacity building within institution, the number of trainings, and whether there is support coming from outside organizations (e.g., the World Bank) for capacity building; (14) an index of some sort to correlate requirements to be met with staff and resources available to meet them; (15) whether the country has a review process.

Suggestions for output indicators included: (1) the number of inspections, instances of violations, enforcement cases, permits, prosecutions, and convictions; (2) the quality of inspections; (3) amount of information collected and disseminated by the focal point; (4) amount of cooperation with other stakeholders that enforce aspects of MEAs; (5) development of a national implementation plan and enforcement strategy; (6) whether there has been outreach to the regulated community and the public; (7) amount of fines / penalties imposed and actually collected and that remain at least in part with the environmental enforcement agency; (8) whether the review process is used; (9) whether there is a baseline against which to measure progress over time.