Enforcement: procedural versus substantive

All 17 government institutions assigned to implement the Montreal Protocol address substantive issues. Three government agencies manage both substantive and procedural enforcement: the State Environmental Administration, Ministry of Finance and General Administration of Customs. Substantive enforcers work on concrete areas directly addressing Protocol implementation, with a quantifiable measurement in place. For instance, the Ministry of Agriculture attended to the phasing out of methyl bromide, while the Ministry of Public Security took care of the usage and management of halon and researched a substihite. Enforcement of the Protocol is therefore characterised by a heavy emphasis on the substantive dimension and a clear division of labour among enforcing agents. A full list of enforcement stakeholders for the Montreal Protocol is summarised in Table 3.2.

Table 3.2 Enforcing agents in the Montreal Protocol

Agent

Duties

Procedural

Ministry of Environmental Protection

Report project progress to the Secretariat and the Multilateral Fund

Investigate, compile and supervise the data submitted by firms, industries and Customs

Ministry of Finance

Manage Multilateral Fund

General Customs Administration

Classify the harmonised system code to regulate controlled ODS product flow

Collect data

Substantive

Ministry of Environmental Protection

Oversee the implementation of the Protocol and Country Programme

Formulate the list of contr olled ODSs

Formulate details of international cooperation

Ministry of Foreign Affairs

Manage ozone-related foreign affairs and legal issues

Ministry of Finance

Formulate taxation policies

Ministry of Agriculture

Manage the use of methyl bromide

Formulate phaseout plan of methyl bromide

State Development and Planning Commission

Plan and Control ODS production, import, export and consumption

Formulate taxation policies

State Economic and Trade Commission

Plan and Control ODS production, import, export and consumption

Formulate taxation policies

Phase out aerosols for medical use

Ministry of Science and Technology

Plan, Organise, Implement and Manage

ODS substitute technology and demonstration projects for new products

Ministry of Public Security

Phase out halon used hr fire extinguishers

Manage halon substitute research, production, usage and recycling

Ministry of Information Industry

Phase out production and consumption of ODSs in solvents

General Customs Administration

Formulate import and export policy of ODS-related products

Ministry of Foreign Trade and Economic Cooperation

Formulate quota system for ODS products

Issue import and export licenses hr line with the quota system

State Domestic Trade Administration

Manage the production and usage of commercial small-sized refrigeration

Coordinate the recycling of CFCs

State Machinery Industry Administration

Phase out ODS hr air-conditioning

Petroleum and Chemical Industries Administration

Manage non-halon controlled substances

State Light Industry Administration

Manage household refrigerators, air- conditioner compressors, aerosol products and foam

Agent

Duties

State Tobacco Administration

Manage ODS-related tobacco expansion production

China Aviation Industry Corporation

Manage and phase out ODS within the respective companies

China Aeroscience and Technology Corporation

Source: Compiled by the author based on information on the website Ozone Action in China, www. ozone.org.cn/gywm/200712/t20071227_l 5667.html

CBD implementation, like the issue of biodiversity, is frill of complexity, and there is no list of enforcers and their duties in a straightforward way similar to that on the website of Ozone Action in China. Consequently, I obtained data of CBD enforcers from the first four national reports on the Implementation of the CBD submitted to the Secretariat every three or four years from 1997 to 2008, fitting neatly into the selected timeframe. I logged 211 entries of implementation efforts from relevant government departments and ministries. Each, according to its proximity to the objectives of the CBD. was coded by me as either a procedural or substantive effort, which will be elaborated upon with more concrete examples. These enforcement efforts are presented in different formats of policy, namely circular. decision, programme, strategy, plan/scheme, regulation, recommendation, notice, method, advice and list/directory. All “regulations” are marked by substantive efforts, as then enactment directly benefits the conservation of biodiversity, and all “list/directory” efforts are marked by procedural endeavours, as by nature, their functions are to provide information and facilitate policy formulation.

However, I am not suggesting that by looking at the nature of the documents one can dictate whether it is a procedural or substantive action. Notices are mixed with both categories. For instance, the notice issued by the then-State Administration of Industry and Commerce entitling above-county-level departments to impose administrative punishment on those who pose a danger and threat to wild annuals is a substantive move, as it has an impact on behaviour down to the local level with the direct purpose of protecting wild animals. In contrast, the notice issued by the then-National Environmental Protection Agency on strengthening environmental protection in the tourism sector does not point directly to biodiversity preservation and confirms a lack of concrete measures to be taken and hence is regarded as procedural.

To explain why some notices or other policy types are more substantive than others, it is necessary to examine who released them. Figure 3.2 offers a snapshot of the distribution of procedural and substantive efforts within individual enforcing agent. As Figure 3.2 clearly demonstrates, the most dominant ministries are the Ministry of Forestry (State Forestry Administration before 2018), National Environmental Protection Agency (Ministry of Environmental Protection before 2018) and Ministry of Agriculture. All together, the implementation efforts of these three institutions make up 64% of the total. In contrast with these three dominating enforcers, the other three which are included in Figure 3.1 are absent from

Substantive versus procedural enforcers. CBD

Figure 3.2 Substantive versus procedural enforcers. CBD

the picture of enforcement: Xinhua News Agency, People’s Daily and Guangming Daily. Rather than categorising them as enforcing agents, the term “compliance agent” is more appropriate. They are largely absent in the national reports, and the only mention of them is their involvement in the publicity activity “Tram-Century Environmental Trip around China”, a campaign with educational purposes.

Figure 3.2 shows that ministries such as Foreign Affairs, Education, Press, Publication. Radio, Film & TV and Intellectual Property contribute purely in a procedural sense to CBD implementation. The role of the Ministry of Foreign Affairs, for instance, is to formulate the China Country Smdy for Biodiversity as well as reviewing and approving a draft national report. For the Ministry of Education, one of its contributions is to establish a National Base for Science and Technology Education of Youth. On the other hand, the Ministiy of Science and Technology and Ministry of Public Security are 100% substantive enforcers, even based on a small number of efforts. The Ministiy of Public Security promulgated two circulars, one regulation and one action plan. Both of these circulars address the issue of illegal hunting and the sale of terrestrial wild annuals, one on “Adapting to the Situation to Better Prohibit Illegal Hunting and Sale of Terrestrial Wild Animals” and the other entitled “Urgent Circular on Stem Blow Policy on Actions of Illegal Hunting, Operation and Use of Wild Aquatic Animals” issued in 2003. The regulation is about jurisdiction regarding criminal cases of terrestrial wild animals and case filing. The plan, in which both the Ministries of Public Security and Science and Technology were involved, together with other ministries, is the China Action

Plan for Biodiversity Conservation. This functions as a roadmap for China as a country to fulfil the objectives listed in the Convention and hence is regarded as a substantive approach to implementation.

The functions of the Ministries of Forestry, Agriculture and Environmental Protection, on the other hand, are more complicated than those mentioned previously. The former two strike a balance between substantive and procedural actions, and the latter is more skewed towards the procedural dimension. One explanation for the procedural pattern of the Ministry of Environmental Protection (МЕР) is its task of collecting information and establishing a database to inform biodiversity-related policy formulation. For instance, the МЕР established a National Committee for Assessing Nature Reserves in 1992, which led to the “Notice on Strengthening the Ecological Management of Natural Resources Exploitation Activities” in 1994, a further notice on “Strengthening Management of Nature Reserves” three years later, and finally, in 2004, a “Circular on Issues Related to Strengthening the Management of Nature Reserves”. With the support of UNEP, the then-SEPA set up a United Beijing Centre for Networking of Environmental Protection. One highlight epitomising the procedural task of the МЕР was to organise activities to celebrate the International Day for Biodiversity on May 22 as enslnined in the Convention itself.

A final takeaway from Figure 3.2 is the level of overlapping responsibilities shared by ministries, which is different from the Montreal Protocol implementation pattern, marked as it is by a clear line of authority. The issues of wild animals and plants, alien species and nature reserves, for instance, fall under the umbrella of the ministries of Forestry, Agriculture and Environmental Protection. In fact, all three carried out the “Decision of Commending the National Advanced Institutions and Advanced Individuals for the Management of Nature Reserves” as an incentive to improve the management of nature reserves. As far as alien species are concerned, the Ministry of Forestry issued a circular calling for an improvement of the guarding and management of harmful alien species in 2002. A followup circular was introduced by the Ministry of Agriculture in 2003 on conducting a pilot action of eliminating poison and removing the harm caused by invasive alien species and consequently launched a national campaign on “Eliminating Invasive Alien Species hr 100 Counties of Ten Provinces” that same year. The Ministry of Environmental Protection also marked out its territory by releasing a circular on “Strengthening the Prevention and Control of Invasive Alien Species of China”.

Table 3.2 and Figure 3.2 together present the enforcement patterns along the spectrum of procedural versus substantive of the Montreal Protocol and the CBD: the former featuring a substantive focus and the latter dominated by procedural efforts. There are several possible explanations for the differences in enforcement patterns. Tire first lies in the way that objectives were formulated in the Country Programme for the Montreal Protocol and the Action Plan of the CBD, specifying how the international conventions will be localised and their national priorities in line with national conditions. Among the seven objectives listed in the Action Plan of the CBD, three are entirely oriented towards obtaining information, the very fu st objective being to improve studies on biodiversity, matched with two actions of assessments of the economic value of biodiversity and establishment of a biological geographical zoning system. The other objective is intimately associated with procedural endeavour, addresses the issue of wild species protection and calls fox- seven concrete procedural actions from an assessment of the situation of wildlife to the launch of research to support the implementation. In comparison, the Country Programme is more straightforward and in line with the expectation of the Protocol on Article 5 countries and lists a specific number of ODSs to be either phased out or frozen, the timeline of reaching these targets and the main technologies of substitutes for each of the nine industiies involved in ODS production and consumption.

The motivation of the Chinese government to be ciystal clear about how the Protocol’s target will be met derives fr om the desire to obtain funding fr om the MLF, which is the second difference between Montreal Protocol and the CBD—that is to say, the availability of an international funding body designed to implement a given international treaty. The creation of the MLF in 1991 is regarded as an enviromnental diplomatic achievement of the Chinese government to represent the interests of developing countries and a triumph hi negotiations, as the delegates from China and India were able to persuade the World Bank to set up a multilateral fund for Article 5 countries based on the principle of additionality.30 Under the auspices of the MLF, the Chinese government has obtained USS80 million to conduct ODS phaseout activities in 18 sectors, leading to a total phaseout of 100,000 tonnes of ODS production and 110,000 tonnes of ODS consumption.31 On the contrary, no special fund was set up to implement the single CBD. and the financial mechanism stirred bigger controversy in the CBD negotiation than the creation of the MLF. Article 21 of the CBD reconciles the demand from the developing countries for funding and technology transfer with the concerns fr om industrialised countries like the United Kingdom about the ramifications of the financial mechanism. As a result, in 1991, the Global Enviromnental Facility (GEF) was set up as a pilot programme and the Convention’s interim financial mechanism which disburses to developing countries to defray the costs of implementation efforts.32

Whereas objectives and international funding explain the differences of implementation patterns of these two treaties, they do not adequately account for the specific pattern of each, namely procedural versus substantive. The enforcement versus compliance dimension offers a better explanation: the pairing of enforcement and compliance agents explains why one treaty is more substantively implemented than the other. As shown in Figure 3.2, an intuitive observation is that when the enforcers perform procedurally, the implementation pattern tends to be procedural. However, a subtler message from the very same figure is why, despite the fact that substantive efforts occupy oue-tliird of the overall CBD enforcement efforts, is the overall pattern procedural? To address this question, the other side of the stoiy, which is the compliance side, must be unravelled.

 
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