Participants at the INECE Workshop (credit N. Isarin)

The INECE SESN Workshop was attended by 38 participants from customs and environmental authorities from 10 countries in the Asia region, as well as from several international organizations. Representatives from countries in North America, Europe and Africa also attended.  The complete list of participating country representatives includes: Australia, Brunei, Cambodia, Ghana, India, Indonesia, Malaysia, the Netherlands, Pakistan, the Philippines, Singapore, Thailand, the United States and Vietnam. Additionally, officials from the Basel Convention Regional Center, AECEN, UNEP Regional Office for Asia and the Pacific, IMPEL and the World Customs Organization attended the workshop.

The workshop consisted of plenary presentations and small group break-out sessions for training. The workshop was conducted in an interactive setting with opportunities for questions, discussion and networking. Participants also went on a site visit to Laem Chabang Port where officials from the Port Authority who provided an overview of port characteristics and activities, and Customs, who explained their process for targeting and inspecting shipments for hazardous waste. Customs officials also presented several case study examples of seized shipments of illegal hazardous waste. At the port, participants had the opportunity to observe the port’s x-ray technology and to interact with customs officials to learn more about their targeting criteria and screening techniques. Following the visit to the port, participants enjoyed lunch together and wrap-up discussion.

The workshop produced several important outcomes, including a call for greater communication and more intense collaboration among the various national agencies responsible for environmental enforcement at seaports. It was noted that extending this communication and collaboration within the Asian region, as well as internationally, would be beneficial. Capacity building activities, especially in the areas of waste takeback, inspection methods, safety  and risk/threat assessments, were identified as needs for the Asian region. Issues of particular interest included the export/import of electronic waste, the various definitions of hazardous waste and the need for effective regulations. Regular meetings within an active network were identified as necessary to improve communication, collaboration, and capacity building among Asian nations.  It was noted that synergistic alliances between the BCRCs, UNEP ROAP, IMPEL, INECE SESN, AECEN, WCO and other organizations working in the region should be an important component of network development. INECE SESN and WCO will cooperate in the sharing of tools, such as the new INECE SESN Waste Takeback Guidance Manual.

The workshop was an important training opportunity for officials from countries that are participating in the Second INECE SESN International Hazardous Waste Inspection Project at Seaports. As with the first project, each participating country prepares and carries out focused hazardous waste inspections in its own seaports and shares the results with INECE. The Project will provide a means for competent authorities to better evaluate their own capacity for detecting and deterring illegal transboundary movements of hazardous wastes through seaports with the support or tools developed by INECE and international experts. The primary purpose is to build enhanced capacity at ports for more effective inspections of waste shipments through improved multidisciplinary cooperation of officials from environment and customs ministries, police and port officials.

The Proceedings provide a robust overview of the breadth of issues discussed at the Conference. Among other things, they present summaries of the plenary sessions, the many workshop discussions, and include sixty-one papers, all submitted by members of the INECE community, that support the themes of the Conference: Enforcement Challenges Across Borders, Promoting Compliance with Climate-related Requirements, Proven Compliance and Enforcement Strategies, Improving Implementation of Environmental Legislation, Non-Traditional Approaches, Strengthening Compliance Institutions, and ‘Developing Effective Enforcement Networks.

As a whole, these Proceedings capture the calls to action, recommendations, and outcomes that emerged during INECE’s 9th International Conference. The Proceedings serve to promote dialogue at both the national and international level on the broad themes of the Conference.  The Proceedings capture the awareness and excitement that was displayed at the Conference and serve to demonstrate that environmental compliance and enforcement programs create value across all areas of society.

The INECE Secretariat hopes that the Proceedings will serve as a helpful reference and encourages this information to be shared. The publications may be downloaded through the INECE Conference website at http://inece.org/conference/9/confproceedings/.

Laem Chabang Port

The INECE Seaport Environmental Security Network (SESN) will host its Third Workshop on Combating Illegal Hazardous Waste Trade Through Seaports, on 19-20 January 2012, in Bangkok, Thailand.

The workshop will bring together experts to collaboratively identify, promote, and refine best practices for detecting and deterring illegal shipments of hazardous waste. On the second day of the workshop participants will visit to observe inspection activities, partake in training exercises and discuss enforcement tools and techniques with Thai officials.

The illegal transportation and trade of hazardous waste is an issue of international concern. Countries of origin and countries of destination both look for effective ways to counteract the shipment of such waste streams. Strategic approaches to inspection and enforcement of domestic and international legislation are critical in this respect. Without those, the detrimental effects of such shipments to the environment, to the health of workers and the general public, and to economies will be persistent and growing. The INECE SESN provides a platform for compliance and enforcement professionals working to stop illicit international shipment of waste.

The workshop is an important training opportunity for officials from countries that are participating in the Second INECE SESN International Hazardous Waste Inspection Project at Seaports. As with the first project, each participating country prepares and carries out focused hazardous waste inspections in its own seaports and shares the results with INECE. The Project will provide a means for competent authorities to better evaluate their own capacity for detecting and deterring illegal transboundary movements of hazardous wastes through seaports with the support or tools developed by INECE and international experts. The primary purpose is to build enhanced capacity at ports for more effective inspections of waste shipments through improved multidisciplinary cooperation of officials from environment and customs ministries, police and port officials.

The full article, in German, is available at http://www.ftd.de/unternehmen/handel-dienstleister/:rohstoffland-deutschland-das-grosse-geschaeft-mit-dem-elektroschrott/60151755.html.

But in difficult economic times, it is important to understand how to provide more environmental governance without more government, including through trans-governmental networks such as INECE, and other networked regime complexes, according to Dr. Oran Young of the Bren School of Environmental Science and Management, University of California, Santa Barbara.

In a paper published recently in the Proceedings of the National Academy of Science, Dr. Young explains that often “regime complexes” can provide the most effective governance:

“Many issue areas (e.g., climate, biodiversity, and marine pollution) feature networks of distinct regimes …that grow up over time in the absence of an overall blueprint. … Regime complexes offer the advantage of being more flexible across issues and adaptable over time than more tightly coupled governance systems. They may be easier to create than fully integrated systems and more resilient to the sorts of stresses occurring at the international or global level today.”

Dr. Young notes that the Montreal Protocol as an example of an effective regime.  The Montreal Protocol is a dynamic treaty that continues to evolve, to improve, and to grow stronger, phasing out almost 100 ozone-depleting substances and placing the ozone layer on a path to recovery later this century.  It also has provided a net of 135 billion tones of CO2-eq since 1990, more than ten times the mitigation of Kyoto in its first commitment period.  Other successful regimes Dr. Young mentions are the governance system for the Antarctica, and the multilateral system to clean up the Rhine River.

In addition to formal compliance systems, Dr. Young notes that “Other factors, such as the extent to which subjects have engaged actively in the process of regime creation and the extent to which they feel that a regime constitutes a fair deal, can make a big difference in inducing actors to comply….”

The abstract is available here: http://www.pnas.org/content/early/2011/11/30/1111690108.abstract

Günter Heine had an impressive academic career. He studied both law and political and social sciences at the University of Tübingen and graduated in both disciplines. He was assistant to prof. Dr. Albin Eser when he taught at the University of Tübingen and later followed prof. Eser when the latter became director of the Max Planck Institute for Criminal Law in Freiburg. From 1982 until 1994, he worked at this Max Planck Institute where he was coordinator of the prestigious project on environmental criminal law. This was a pioneering study since at that moment the question whether the criminal law should be used to protect the environment was hardly studied at all. Many scholars worked with him at the Max Planck Institute, were inspired by his thoughts and later also became leading experts in their own country, pursuing the idea that the criminal law has a task in protecting the environment.

Günter Heine wrote a doctoral dissertation which he defended in 1987 on “Tötung aus niedrigen Beweggründen” and was awarded the degree summa cum laude. In 1994, he defended his habilitation at the University of Basel on the Strafrechtliche Verantwortlichkeit von Unternehmen (criminal liability of enterprises).

He has an impressive list of publications both in German and in many other languages as well in which he defended his idea that different types of criminal provisions are needed to protect the environment depending on the protected interests and the way in which they are endangered or infringed. He participated inter alia in a conference of the Association Internationale de Droit Pénal in 1992 where he reported on environmental criminal law in Germany and was expert to the council of Europe in the preparation of the convention on the protection of the environment through criminal law.

In his own country, he became the leading expert in environmental criminal law when he drafted an expert report in 1988 for the Deutschen Juristentag (German law association) on the question whether environmental criminal law needed to be changed, especially taking into account its relationship to administrative law. He published inter alia a volume on environmental criminal law in the European Union which contained a documentation of the main provisions and introductions to environmental criminal law in many Member States. In addition, he executed a project for the IMPEL network which provided an inventory of criminal enforcement of environmental law in the European Union. Many of his publications address the way in which the criminal law was used to protect the environment in various legal systems and he published in prestigious journals like the Duke Environmental Law and Policy Forum (1992, 106-121).

Through his leading work at the Max Planck Institute, he had a large network since he had been a source of inspiration to many scholars interested in environmental criminal law. He published jointly with many of his colleagues and friends and participated in conferences in the US, China and Latin America.

After his time at the Max Planck Institute in Freiburg, he was a professor of criminal law in Giesen, Dresden and finally in Bern, where he also became the dean of the law school. He was still professor of criminal law when he passed away.

It would take too long to discuss the many publications of Günter Heine; he had in his whole career more than 200 publications! An overview is available here.  It suffices to state that for the German speaking world, he was the primus inter paris in environmental criminal law. Significant is e.g. the fact that he was the author of the comments on the articles in the leading commentary on criminal law in Germany of Schönke/Schröder, but his reputation reached far beyond the German-Swiss borders. To many scholars, he was a true example of scientific integrity and scholarship: being always very precise and accurate in the formulations and never only looking at theory or dogmatics for the sake of improving theory, but always interested in how the criminal law could contribute to solving social problems and more particularly environmental protection. In addition to being such an outstanding scholar, Günter Heine was one of those exceptional persons whom one rarely meets in a lifetime: combining high intelligence with a great sense of humour, always joking and making fun about many situations, himself included.

To many working in the field of environmental criminal law, Günter Heine therefore not only became a great inspirer due to his academic work, but a true and loyal friend as well. The environmental compliance and enforcement community lost a great man whose work will still live on for the years to come. We wish his wife Iris and the three daughters he leaves behind lots of strength in this difficult period.

Antonio Benjamin and Michael Faure

Parties to the UNFCCC recognize that the international community cannot monitor compliance with commitments without trustworthy information on countries’ mitigation and support activities.  Much of what needs to be accomplished in Durban focuses on rules relating to the content, accuracy, transparency, completeness, and comparability of information that countries will be required to report.

COP17 negotiations will cover two types of topics that are critical to the integrity of information on emissions, mitigation actions, and provisions of support.  The first concerns the form and content of nationally provided data, consisting of annual greenhouse gas inventories, national communications, and biennial reports.  The second area of concern focuses on a framework for ensuring that countries are up to the task of reliably providing this information.  These procedures consist of international assessment and review (IAR) for developed countries and international consultation and analysis (ICA) for developing countries.  Together, these measures comprise the framework for measurement, reporting, and verification (MRV) that is the central mechanism for ensuring compliance.

Defining compliance with mitigation commitments

Last year’s climate change conference in Cancun, Mexico, culminated in a set of agreements (“the Cancun Agreements”) which addressed the principles that must be observed in the ICA and IAR reporting processes and in the next generation of reporting requirements.  During the months leading up to the Durban conference, over forty countries submitted views on the implementation of these mandates.  One commonly shared concern is that developing countries have widely varying capabilities for providing the quantity, quality, and frequency of data that will be needed in order to ensure accurate assessments and comparisons of mitigation performance. This issue is especially relevant to negotiations on the content of biennial reports for developing countries, which must ensure transparency, comparability and utility, without being overly burdensome.   A second concern is the fact that there is broad diversity in the mitigation actions that countries will undertake.  This presents challenges for achieving comparability and transparency, but the Parties will need to establish guidelines nonetheless if they are to move ahead.  A third topic is the manner in which ICA and IAR processes will be conducted.  There is significant concern among developing countries that ICA should be a facilitative but not intrude upon national sovereignty.

Compliance in the context of forests and REDD+

REDD+ refers to a range of mitigation activities relating to reducing emissions from deforestation and forest degradation, as well as other forest management practices.  Defining a rules for managing REDD+ presents especially difficult challenges because there are so many factors that can compromise assessments of forest-related mitigation actions.  Recognizing the special complexities involved, the Cancun Agreements (par 71(c)) called for each country contemplating the implementation of REDD+ to undertake a careful, measured approach to designing and managing a robust, transparent forest monitoring system that takes into national circumstances. Cancun (par. 73) also addressed the fact that financial and technological support from developed countries would be needed in many cases to achieve reliable and effective results.  Due to the challenges involved in establishing reliable rules and guidelines for REDD+, countries are asked to proceed in phases, starting with the development of national strategies, policies, and capacity-building, to be followed by a second phase of capacity-building, technology development and transfer and pilot projects, and finally culminating in “results-based actions” that will be comprehensively measured, reported and verified.

Defining compliance for commitments of support

Developing rules for evaluating the extent to which developed countries have followed through with commitments of financial, technological, and capacity-building support presents its own set of problems.  One of the most vexing challenges is the characterization of support that developed countries provide developing countries meet climate objectives.  Under the UNFCCC, developed countries must provide climate mitigation support that is “new and additional.”  This has been widely interpreted to mean support that is separate from and above general economic development assistance.  Yet funds that have been provided in the past frequently do not permit this clear distinction, since those funds may have multiple purposes (economic development and climate).  Although the OECD’s Rio Markers have often been used to determine the character of funds that are used for sustainable development objectives, they do not cover the range of mitigation activities, spillover benefits, and sources of support that may be involved in climate-related activities.  Some participants question whether it will ever be possible to devise strict, standardized definitions of climate support that will permit the tracking of all support over time and in all circumstances.

Going forward

Irrespective of whether participants in the Durban conference find significant common in committing to climate mitigation and support, they can make valuable progress in defining rules for climate-related compliance.  There is no need to begin from scratch.  Attempts to address many of the MRV issues that the negotiators currently face have already been made once before, in defining compliance procedures for the Kyoto Protocol.  Without a doubt, all of these measures must be refined, improved, and in some cases discarded, but they provide a wealth of experience with which to go forward.

The training was held in Mombasa, Kenya, and brought together 24 participants from various government agencies in Ethiopia, Kenya, Tanzania, and Uganda. Among the participants were environmental inspectors, attorneys, planners, police officers and managers of compliance and enforcement programs. The courses were facilitated by a team of highly qualified and experienced trainers from the USA, Netherlands, Tanzania and Kenya.

The Principles of Environmental Compliance and Enforcement training course, which ran from 14-16 November, is designed to enable participants to develop their own management approach to an environmental problem, to draft enforceable requirements where appropriate, to design a unique compliance strategy and enforcement program, and to role-play in a negotiation session to resolve a specific enforcement case.  At the end of the course, all the participants were optimistic that they will be able to apply the common principles to their specific environmental challenges and design efficient strategies to use their national laws to their most effective outcomes.

The Principles course was developed by the U.S. Environmental Protection Agency (U.S. EPA), in cooperation with the Netherlands Ministry of Housing, Spatial Planning and Environment in response to requests from new enforcement programs and has been taught to thousands of participants in different countries and environmental programs worldwide.  It presents a compilation of international experience on the fundamental principles for designing and implementing environmental compliance and enforcement programs and is designed for delivery in a wide variety of cultural settings.

On 17-18 November, 12 participants out of the 24 who had successfully completed thePrinciples course proceeded to undertake the Facilitators Course for the Principles of Environmental Compliance and Enforcement Training. The aim of the Facilitators course was to build capacity for future delivery of the Principles courses and other related courses in East Africa. It is expected that with some additional mentoring, this team of facilitators will be able to replicate the Principles course in many organizations across East Africa.

 “I am extremely excited because EANECE’s goal for joint capacity building for environmental compliance and enforcement in East Africa has finally materialized through this training. We also achieved our other goals of networking and information sharing. I thank the USEPA and INECE for sponsoring this event. It is my dream that we will in the near future be able to have other similar training in East Africa and, that each EANECE member country will one day be able to replicate these courses nationally and within their member organizations.”  — Dr. Robert Ntakamulenga, EANECE Executive Committee Member, at the official closing of the Principles Course.

Participants mutually learned from views, practical examples and discussions. Illegal waste shipments are generally perceived as a serious problem that needs to be addressed by appropriate measures. In doing so, however, the legitimate trade and transport should not fear unnecessary interventions. It was concluded that ways forward may be found through improved exchange of information, both within and between stakeholders’ communities. Further work will be initiated along those lines, also in anticipation of a potential follow-up workshop in 2012.

Of particular interest to compliance and enforcement practitioners is the article Reducing the Risks of Illegal HCFC Tradeon page 16. The article, written by Tapio Reinikainen of the Finnish Environment Institute and by Heli Lampela of the Finnish National Board of Customs,  looks at the conditions that can be conducive for illegal trading in HCFCs and at the potential solutions, with a focus on capacity building among customs officers.