An important part of national level enforcement of a State’s obligations under multilateral environmental agreements is the incorporation of international law into national law. The Guidelines emphasise the importance of clarity, feasibility and thoroughness when it comes to the “enforceability” of national environmental laws implementing MEAs (See Guidelines 40(a)
, 40(b), and 40(c)).
International agreements (such as MEAs) are generally incorporated into national law by either re-enactment or reference. Incorporation by re-enactment refers to the implementation of international law through the development of detailed national law. Incorporation by reference means the development of national law that requires an international agreement be complied with simply by referring to it, without “translating” all of its details in the national law.
Methods for Incorporating International Environmental Law into National Law
Incorporation by re-enactment. Incorporation by re-enactment translates institutional, administrative, regulatory and penal measures required by the MEA into domestic law at the time when the legislation is passed. This method also allows the state to translate any “soft law” (non-binding) type obligations into “hard” (binding) law if it so desires.
Incorporation by reference. Incorporation by reference has the advantage of speed and simplicity. Ratification need not be delayed for legislative considerations and the giving of “the force of law.” Incorporation by reference does not necessarily create the required institutions or administrative arrangement in domestic law.
Adaptively Developing Implementing Legislation
When developing legislation and institutions to implement MEAs, States often consider the approaches of other States (particularly those in the same region and with similar legal systems). Thus, later legislative efforts are able to learn from the successes and challenges of earlier laws in other States.
For example, in the Caribbean, the first developing country to adopt legislation implementing the g[Montreal Protocol] based the law on a UNEP manual on the topic and on Australia’s law. Since then, meetings of the Ozone Officer’s Network have provided an ongoing venue in which officers can discuss their difficulties and share experiences on best practices [see case study on “Regional Networks and South-South Cooperation to Assist Countries in Complying with the Montreal Protocol” following Guideline 34(c)]. UNEP also participates in these meetings, as it is the main implementing agency for developing licensing systems and customs training. Through these meetings, Caribbean nations have learned from and build upon experiences in other Caribbean nations. In doing so, they have drafted more effective laws that closed potential loopholes.
The OECD’s “Guiding Principles for Reform of Environmental Enforcement Authorities in
EECCA” encourage countries to pursue an approach of adaptive management to enhance environmental enforcement with “an iterative regulatory process.” In particular, “[a]n enforcement agency should actively promote, and rely on, feedback between inspection and permitting, and between these two and legislative development. Also, better assessment of compliance requires feedback between ambient monitoring and inspection. “ To support this process, the Guiding Principles call for the development and application of environmental indicators. For more information, see http://www.oecd.org/dataoecd/36/51/26756552.pdf. For more information on environmental enforcement and compliance indicators, see also the case study on INECE, following Guideline 34(c).
For more information on adaptive environmental management in the development of environmental legislation, see the discussion on the topic following Guideline 39.