sou · GWB348EN · 2009-01-01 00:00:00 — SOU 2008:48 Intergovernmental cooperation on the environment and a Swedish .. Several other authorities, in addition to those already men- tioned, will have important roles to play in the implementation of the MSD. 3.3.4A specific authority as competent There have been three possible arrangements as regards the choice of authority competent for implementation of the MSD. The choice has been between either designating a specific competent authority, designating two or more authorities in cooperation as competent, or establishing an entirely new authority. The Inquirys assessment is that a specific authority should be appointed as it is of the utmost importance to designate such an authority in order to be able to pursue vigorous, clear and transpar- ent efforts. The Inquiry has also deemed it important for the authority to be able to coordinate its work with the water authorities. Regarding the question of cooperation with other countries, it is also important for one authority to be designated competent for implementation so that it is clear where one should turn to compare results, develop joint action and informa- tion. The choice of authority has most stood between the Swedish EPA, and , all of whom have important functions in the management of the environ- ment. The Swedish EPA is currently responsible for most of the monitoring and commissioning functions which, when fully devel- oped, will be important in the implementation of the MSD. does not currently have a main environmental policy task and has therefore not be considered as the sole competent authority for this issue. does not have any direct experience of managing the environment apart from man- agement of fish resources. The Inquiry has considered whether certain functions could be moved from to a new authority, or giving it new tasks and then designating it the authority. The authoritys remit would then consist of being responsible for operative work within the common fisheries policy including the commissioning of data on species and stocks. The Inquiry did not find this to be the best alternative, however. Intergovernmental cooperation on the environment and a Swedish .. Fisheries is a very extensive task that has not been deemed possible within the framework of this assignment. The conclusion is, therefore, that the Swedish EPA should be designated the main competent authority for implementation of the MSD as the task is in line with the Agencys normal remit. The Swedish EPA is deemed to have the structure, organisation and position required to be able to shoulder the responsibility as the authority. Cooperation with other relevant authorities on implementation should be established in the Agencys instructions. A large number of authorities and other actors will be involved in implementation in different ways. 3.4Cooperation between intergovernmental bodies and conventions to implement the MSD I propose that makes long-term endeavours to strengthen HELCOMs position as an intergovernmental actor working to protect the environment in the Baltic Sea area. should propose that the political process pursued within HELCOM be strengthened by instituting annual high- level meetings between the countries environment ministers. The long-term ambition should be for the countries heads of state and government to meet annually to stress the priority of the environment issue. I also propose that work to establish a committee within HELCOM to control compliance with the Convention and the HELCOM Baltic Sea Action Plan (BSAP). shall also work to highlight the results of and shortcomings in the environment work of the contract- ing parties. A plan for action within HELCOM and OSPAR should be incorporated into the general action plan for Swedish environment protection in the intergovernmental con- text, as proposed in this chapter. SOU 2008:48 Intergovernmental cooperation on the environment and a Swedish .. 3.4.1Significance of intergovernmental environmental cooperation Most Baltic Sea cooperation on the environment is cur- rently intergovernmental. The exception is fishing, where decisions are mostly taken on the community level. Decisions regarding agri- culture are also taken on the community level, but this sector is currently not integrated with the environment issue to any greater extent. As regards nature conservation, there are some areas where the decision-making powers are limited for the Member States, through for example the Habitats Directive. The main aim of the intergovernmental agreements is to regulate cooperation between governments in a particular field. Even if all parties to conventions are legally obliged to fulfil their undertakings, there is often a lack of effective mechanisms to guarantee compliance with their obligations. Furthermore, the relationship between interna- tional law and national law, which is normally regulated in each countrys constitution, is crucial if a specific convention provision is to be invocable before national courts. Conventions on the environment are, however, normally designed so that it is in principle impossible to apply them in the national system. National adaptation measures and some transposition of the con- ventions wording into national legislation are hence always required. Most known sources of environmental problems in the environment have been regulated through international agree- ments. The aim of these has normally not been to force the parties to act in a specific way but to coordinate national efforts and pro- mote cooperation within a certain area. It is in the nature of such agreements that their content is the result of many compromises Most of them have been adopted by unanimous decision and therefore normally reflect the lowest common denominator in the parties political will. Apart from the in-built weakness that is the result of objectives often being set too low and of the way these conventions are negotiated and adopted, their efficacy is also affected by what powers are vested in their governing bodies. The Convention, which is governed by HELCOM, and the OSPAR Convention, governed by OSPAR, are the inter- governmental regional agreements for the sea areas in which is included. Intergovernmental cooperation on the environment and a Swedish .. 3.4.2HELCOM as an intergovernmental actor The Commission (HELCOM) is an intergovernmental organisation for the implementation of the Convention (established in 1974 and revised in 1992) covering nine countries in the Baltic Sea area and Commission. The presidency of HELCOM rotates between the countries on a two-year basis. will be president in 2010–2012. The countries environ- ment ministers meet within HELCOM but not on a regular basis. The countries heads of state and government do not meet within the HELCOM framework. Work is mainly conducted in five the- matic groups. These are HELCOM MONAS, which monitors and evaluates the state of the environment and the effects of implemented actions; HELCOM LAND, which works with issues regarding land-based pollution sources; HELCOM HABITAT, which works to protect nature and biodiversity; HELCOM , whose remit is emissions from sea-going ; and HELCOM RESPONSE, whose remit relates to measures to pro- tect and alleviate the effects of pollution accidents. The work mostly comprises drafting recommendations for environ- mental efforts in the Baltic Sea, based on information collected on the state of the environment over thirty years. HELCOM works with ecological targets based on a common vision and plays a monitoring role to ensure that the objectives established within the framework of the Convention are fulfilled. HELCOM works as a governing body for the Conven- tion, which includes agreements on reducing emissions and restoring the ecological balance of the environment. HELCOM also works as an information point for authorities and other actors as regards the situation for the environment, the efficacy of various measures and common initiatives which can form the basis of decisions taken in international fora. Guidelines and action plans are established in working groups comprising researchers and representatives of member countries environment ministries and are adopted at meetings on the ministerial level, which are held as appropriate. HELCOMs work is primarily funded by its members. No binding agreements are established between the member countries within the HELCOM framework. Instead, addenda to the Convention are drafted through general recommen- dations for environmental cooperation. Critics see this as one of SOU 2008:48 Intergovernmental cooperation on the environment and a Swedish .. the Conventions major weaknesses. The discussion regarding binding and non-binding undertakings has been dis- cussed earlier in this report, especially in Chapter 1. It is worth mentioning in this context, however, that OSPAR, which is described below, has a clearer and more far-reaching remit under the OSPAR Convention than what HELCOM has under the Convention. OSPAR explicitly states that the Commis- sion shall assess whether the parties are following the Convention and the decisions and recommendations adopted thereunder. This shall also be done on the basis of reports from the parties them- selves. When appropriate, OSPAR may also decide upon and call for steps to bring about full compliance with the Convention and decisions taken thereunder (Article 23). This is not a question of independent scrutiny, however, since OSPAR has been put together by the contracting parties representatives. The fact that the EU is party to most conventions relevant to the protection of the environment in the Baltic and North Sea does, however, ensure the content of these conventions is con- crete and binding within the parties domestic legislative systems. The link to EC directives makes it easier for each EU to check how other convention parties are fulfilling their undertakings. The Baltic Sea Joint Comprehensive Environmental Action Pro- gramme (JCP) was drafted within HELCOM in 1992, with the aim of restoring the ecological balance in the Baltic. A total of 132 hot spots, which had a negative environmental impact on the Baltic Sea, were identified. Since then, a large number of these hot spots have been eliminated, although only a few of them in . The Northern Dimensions Environmental Partnership (NDEP) works to, among other things, reduce the impact on the environ- ment from these hot spots. The countries within HELCOM agreed in on a joint environmental action plan, the HELCOM Baltic Sea Action Plan (BSAP). The idea is for much of this action plan to constitute the basis for implementing the MSD on the regional level. The BSAP aims to cement joint principles for measurement, monitor- ing and analysis of the state of the environment. Intergovernmental cooperation on the environment and a Swedish .. specifies a vision for the Baltic Seas environment, a number of clear ecological objectives and several operationalised targets. It is built on the principle of peer pressure (i.e. that countries put pres- sure on each other) rather than on binding decisions. It also high- lights a need for large-scale spatial planning in offshore areas. Most international conventions in the environmental field apply some form of reporting system according to which the Member States more or less regularly report the action they have taken to meet the obligations laid down in the convention as well as any problems they have had in doing so. The parties to the Convention shall report to the Commission at regular intervals on legal, regulatory or other measures taken to implement the provi- sions of this convention, its annexes and recommendations adopted thereunder (Article 16). The reporting shall also include the effectiveness of the measures taken and problems encountered in the implementation of the provisions and recommendations. detailed provisions as to how and when reporting is to be carried out are not included in the Convention. Reporting is not in practice governed by a uniform regulatory framework. Instead, decisions on reporting are taken specifically for the various the- matic groups based on needs identified by the parties. In light of the central role played by the Convention and to a certain extent the OSPAR Convention in the governance of the Baltic Sea and adjoining sea areas, there is reason to look more closely at the mechanisms for development and more precise definition of the parties undertakings. Both conventions have a commission comprising representatives of the member countries. HELCOMs tasks include monitoring implementation of the con- vention, proposing measures associated with its purpose and with such amendments to the convention and its annexes, as maybe required. SOU 2008:48 Intergovernmental cooperation on the environment and a Swedish .. Compliance with the Convention The Convention lacks a formal mechanism for monitor- ing contracting parties compliance with it. One of HELCOMs duties is admittedly to keep the implementation of the convention under continuous observation (Article 20). The convention does not afford any concrete powers to act against failure to implement apart from proposing various types of measures. A review of member countries reporting, carried out in 2003, ascertained that few of HELCOMs recommendations had been fully implemented.3 The situation was seen as an improvement compared to five years previously. It was also pointed out that, while reporting often provided a relatively good basis for evaluating formal implementation in the form of legal and administrative measures, it can be difficult to establish whether authorities and other parties concerned actually take the concrete measures needed for the recommendations to have an effect. Furthermore, some recommendations are worded so vaguely that it is difficult to assess the extent to which they have been implemented. The content of the national reports also varies a great deal, making it difficult to compare the degree of implementation reached by the various member countries. As regards the reporting system in the HELCOM LAND working group, it can be ascertained that the reporting format was demanding unnecessary information from the member countries, which has led to a lack of motivation to report in accordance with the adopted system. Simplification and harmonisation of the reporting were highlighted as very important measures. In future, reporting to HELCOM will be coordinated with the countries reporting to Commission to a greater extent. The BSAP as a basis for implementation of the MSD and the pilot project The HELCOM Baltic Sea Action Plan (BSAP), adopted by the member countries in , is seen as an important basis for implementation of the MSD in the Baltic Sea area. The BSAP is made up of agreements and recommendations agreed on by the 3 HELCOM, Compliance with Requirements of the Convention and HELCOM Recommendations, HELCOM 24/2003, 25 2003, p. 1–2. Intergovernmental cooperation on the environment and a Swedish .. Legally, these are of a non-binding nature, insofar as there are no mechanisms for sanctions in the event of non-compliance with the agreements. The BSAP must nevertheless be seen as a clear commitment from all parties in that they have agreed concrete emission ceilings for phosphorus and nitrogen. The BSAP is based on the ecosystem approach and aims to cement joint benchmarks for emissions and contaminants as well as principles for measurement, monitoring and analysis of the state of the environment. This includes, among other things, devel- oping indicators and goals for environmental monitoring and for evaluating implementation. A clear follow-up system based on these indicators will be established. Furthermore, a ministerial meeting will be held in 2013 to evaluate the effectiveness of the national programmes. Depending on the results of this evaluation, the action plan and indicators will be modified for greater goal achievement. A special implementation group has been appointed to ensure the goals in the BSAP are achieved. The overall aim of the BSAP is to achieve good environmental status by 2020. National programmes of measures shall have been developed by 2010. All measures must be implemented by 2016, though many by an earlier date. The measures to be implemented are determined based on, for example, the emission ceilings for phosphorus and nitrogen and the burden-sharing agreed on by the member countries. Measures for greater phosphorus treatment, restricted use of hazardous substances, of principles for spatial planning, creation of more protected zones and targets for commercial species (which must be negotiated within the CFP) are other areas on which the countries have agreed within the framework of the BSAP. As an arena for political negotiation on specific measures, HELCOM has found it difficult to proceed past the resolution stage. This depends on a number of factors (highlighted in Chapter 1.5), but one obvious factor is frequently adopting a nega- tive stance on commitments to greater environmental concern. is also sceptical about being involved in cooperation projects that have a clear EU dimension. Negotiations between Baltic Sea countries often start with pointing out that the country is SOU 2008:48 Intergovernmental cooperation on the environment and a Swedish .. not bound by commitments made within the EU. HELCOM can scarcely therefore function as an arena for direct implementation of EU directives and recommendations, but must achieve agreements that to some extent run parallel to these. All countries in the area agree that the relationship to , to which HELCOM helps to maintain, is particularly central regard- ing cooperation on environment issues in the Baltic Sea area. 3.4.3OSPAR as an intergovernmental actor A regional agreement which in many respects is similar to the Convention is the Convention for the Protection of the of the North-East , the OSPAR Convention. All the states of the North Sea, in addition to a few other states, are party to the OSPAR Convention. The EU is also party. As is the case with the Convention, OSPAR is applicable to the internal waters of the parties as well as to the ter- ritorial sea and other parts of the sea that fall within the parties jurisdiction and which are within the geographical borders of the convention. There is a certain amount of geographical overlap between the two conventions. Both are applicable to parts of and the Belt Sea. The OSPAR Convention is also applica- ble to Swedish waters in . Both conventions have a broad impact and contain regulations on many types of activities that may damage the environment. It is important to note, however, that neither of the conventions regulates fishing as such. OSPAR has similar competences and undertakings to HELCOM. A crucial difference is, however, that OSPAR can, in addition to recommendations, also adopt decisions that are for- mally binding for the parties. Both decisions and recommendations should be unanimously adopted. If unanimity cannot be reached, the Commission may, however, decide on such instruments by a three-quarter majority. A decision becomes binding two hundred days after adoption for the parties who have voted in favour of it. Such a party may, however, within this period notify the Conven- tions executive secretary in writing that it cannot accept the deci- sion and will then not be bound by it. Intergovernmental cooperation on the environment and a Swedish .. The MSD makes several references to cooperation with existing regional organisations. Arenas like HELCOM and OSPAR have an important role in promoting cooperation and dialogue between the member countries, which also constitutes a form of control over what they achieve. HELCOM can help to improve national imple- mentation processes. Based on an ecosystem perspective, it is clear that such a relatively small sea as the Baltic cannot be treated in the same way as a collection of national areas. Instead, it constitutes in most essential respects a single unit. If HELCOM and OSPAR, in their roles as intergovernmental organisations, are to be able to act as a support and driving force for EU Member States when implementing the MSD, certain changes need to be made to them. Starting in 2008, OSPAR will undergo an organisational review. HELCOM cannot at present be seen as the optimum organisation for a model environmental con- vention. Its structure and mandate reflect the member countries approach to environmental problems and environmental agree- ments in the early 1970s. When the convention was updated in 1992, HELCOMs organisation and powers were not changed. Bearing in mind that the Convention is the only environ- mental agreement of legal standing to which all the Baltic Sea countries are party, every time the legal protection of the Baltic Sea is strengthened, it should happen within the framework of this convention. Effective joint management of the Baltic Seas envi- ronment therefore requires HELCOM to be given a new and stronger role. Although its organisation is in need of strengthen- ing, it is primarily its mandate and powers that need to be rein- forced. Both these aspects complement each other and must be dealt with in parallel. Regarding its organisational structure, a strong political body should be established within HELCOM on an annual basis for the member countries environment ministers. The environment min- isters dont currently meet on a regular basis within HELCOM. The aim should be for the countries environment ministers to meet once a year to further increase the political significance of the issues and provide legitimacy for powerful measures. The purpose of this is also to broaden cooperation, insofar as environ- ment issues are affected by several sectors, and through this create the conditions for better sector integration. SOU 2008:48 Intergovernmental cooperation on the environment and a Swedish .. Although it would be positive for the body to have a mandate to make legally binding majority decisions, it seems currently unreal- istic to hope that all member countries, especially , would accept such an arrangement. One might imagine that a decision- making process such as the one applied by OSPAR would be a more reasonable alternative to propose for a transitional period compared to the current procedure. approach should be to initiate proposals for organisational changes at a suitable junc- ture, although at the same time base them on a realism that accepts such changes must be allowed to take time as many countries are involved. An important component of modern environmental conven- tions is that their governing bodies include a special compliance. Such a committee receives reports on the failures of member countries to meet their obligations. The powers of these committees vary from publishing reports ascertaining such failures to imposing sanctions. For the decisions taken by HELCOM to be correctly imple- mented, a special unit – a control – is required with representatives from all member countries and with the competence to receive complaints not only from member countries and their authorities but also from the general public throughout the Baltic Sea region. Even a committee report ascer- taining that a member country has failed to fulfil its undertakings would be enough to get the Baltic Sea countries to implement more fully what they have committed themselves to in the convention. To start with, should strive to bring about such an organ- isational development within HELCOM. In the longer term, it is important for to also work to bring about more funda- mental changes to the Convention. 3.5The Baltic Sea as a pilot project for environment work