Section 3 discusses legal regimes for plant health regulation, pointing out aspects relevant to the management of invasive alien species. Chapter 7 offers a plan of action for countries that might be looking for ways to adapt national phytosanitary legislation and systems to better control invasive alien species. Chapters 8 and 9 discuss recent developments in national phytosanitary regulation in particular countries, namely China and India. (It should also be noted that chapter 6 in the preceding section deals with the phytosanitary system of the European Union.)
Assessing a phytosanitary regime for control of invasive alien species
Chapter 7 details a methodology that could be used by countries in identifying and assessing their institutional and legislative frameworks for the control of invasive alien species. Based on work in Ghana, the methodology merits consideration by other jurisdictions (especially developing states that adhere to the common law tradition) for its applicability to their situation.
Elements and stages of the methodology are:
identification of the nature and sources of introduction of invasive alien species
Assessment of causes and/or sources of introduction of invasive alien species (intentional or unintentional and through various pathways, including air, land and sea) allows determination of the priority areas for action. Accurate information on plant health status in a country provides an informed basis for the provision of preventive or eradication measures under the legislation.
identification of the applicable global and regional instruments governing invasive alien species
The major global, regional and soft law instruments that address the subject of invasive alien species are documented in this publication and elsewhere. It is the provisions of these instruments that constitute the benchmarks against which national standards may be measured. In this regard, the Convention on Biological Diversity and its guiding principles on invasive alien species and the International Plant Protection Convention and the international standards for phytosanitary measures are of paramount importance.
determination of the ratification status or otherwise of the instruments, and if not ratified, the necessary steps for ratification
In common law jurisdictions, treaties entered into by states are usually not directly enforceable in the courts unless enacted as legislation at the domestic level. This contrasts with the situation in other jurisdictions where treaties form part of the law. The treaty-making or ratification power is governed by the constitutional order.
A treaty ratified by a state is binding on that state. Accordingly, the state would be enjoined, where the treaty is not directly applicable at the domestic level, to enact appropriate legislation to give force and effect to the provisions of the treaty.
identification of the existing relevant legislation and institutions
In all jurisdictions, there are sources of law from which to ascertain the relevant legislation on a subject. In the common law tradition these include the constitution, parliamentary enactments, subsidiary legislation and the common law.
In many jurisdictions, legislative enactments provide the main body of law, emanating from a single legislature in unitary states or a two-tier system of legislation in federal states. Subsidiary legislation in the form of regulations is most often employed as a means of providing detailed implementation of the law. There are also codes of practices, directives or standards, which are not legally binding but serve as guides.
Box 1: General components of legislation on control of invasive alien species
The scope of the legislation explains precisely and concisely what the law covers and its stated objectives; for example, An Act for the prevention of the introduction and spread of pest of plants, plant products and related matters.
The definition of terms could be adopted from the relevant instruments, especially the CBD and the IPPC.
The institutional or organizational basis for the control of invasive alien species could include provision for a plant protection organization and a technical advisory body, for example.
Enforcement provisions could include specific powers or functions for enforcement officers, conditions for the importation and exportation of plant and plant products and quarantine provisions.
Offences and penalties include penalties for convictions for violations on the basis of due process.
Financial provisions include the power to levy fees and financial autonomy for the NPPO.
Special procedures could include immunities for officials for acts done in good faith.
Appeal processes and procedures should be described.
Provision for international cooperation and collaboration (especially with neighbouring states) is included because the source of invasive alien species is usually external.
The power to make regulations is given to the minister or relevant authority to enable the law to meet changing circumstances.
The next step is sometimes an arduous task: an in-depth examination of each of the various sources of law to ascertain whether or not any provisions address the subject of invasive alien species. In the absence of a specific enactment on invasive alien species, the legislation in each relevant sector (e.g. forestry, wildlife, wetlands, marine environment, plant protection) could be examined.
The large number of relevant institutions in the field of control of invasive alien species (e.g. ministries or agencies for agriculture, health, environment, transport, justice, interior and trade, environmental protection, customs and immigration) may lead to conflicts, overlaps and gaps in the regime. This may require the strengthening of the lead agency or the creation of a coordinating body within the existing regime. The choice will influence the form of legislation to be adopted.
assessment of the existing legislation in the light of the international instruments
At this stage, the inventoried existing legislation must be examined to ascertain whether it conforms to the provisions of the various international instruments. Gaps or inconsistencies would be noted for appropriate corrective measures in any proposed legislation.
For example, the IPPC enjoins parties to establish national plant protection organizations with specified functions for pest regulation, phytosanitary certification, importation and exportation regulations etc.; if there were no national plant protection organization, it would have to be catered for under the proposed legislation.
determination of the form and content of the legislation
In providing an enactment on invasive species, care must be taken to ensure that its provisions conform to, or are consistent with, the fundamental law of the land, the constitution. If the proposed legislation is to give force to the international instruments such as the CBD and IPPC, it must reflect the relevant provisions of these instruments.
In the preparation of the legislation, one of three identified approaches could be adopted:
The components of legislation on the control of invasive alien species are likely to be those listed in box 1.
assessment of the capacity for implementation
Laws when enacted will not achieve the desired objective unless they are backed by adequate resources, both human and financial, for their implementation.
Developments in phytosanitary regulation in China
China has analysed its existing legislation and regulations in relation to the IPPC framework and is updating plant quarantine regulations to harmonize them with international agreements and standards. It has also initiated efforts to prevent and contain invasive alien species, which have proved a significant problem to China (see box 2).
The two principal pieces of legislation relating to the phytosanitary system are:
The law of the Peoples Republic of China on the entry and exit animal and plant quarantine (implemented in April 1992) provides specific stipulations for entry and exit quarantine work, including phytosanitary inspections and treatments and other phytosanitary requirements.
The regulation of plant quarantine (implemented in May 1992 after a revision) prescribes the purpose, the domestic organization, plant quarantine scope and the measures for pest risk management.
Box 2: The problem of invasive alien species in China
Invasive alien species have caused notable economic losses in agricultural and forestry production. Examples include three alien species of leafminer (Liriomyza sativae, L. huidobrensis, L. trifolii), pinewood nematode (Bursaphelenchus xylophilus) and fall webworm (Hyphantria cunea). Other alien organisms have had serious consequences for biodiversity, in particular, crofton weed (Eupatorium adenophorum), common cordgrass (Spartina anglica) and water hyacinth (Eichhornia crassipes).
Some of the reasons why invasive alien species have been a major problem in China are:
Initiatives to update the legislation and build phytosanitary capacity will help in the countrys efforts in risk identification and management of invasive alien species.
The latter is being updated to meet the requirements of the IPPC framework and relevant international standards. The proposed new legislation will attempt to align all the definitions with the international standards. Items such as pest free area and pest risk analysis will be included. China is putting a lot of effort into conforming well with the market economy and international law.
A nation-wide, general investigation of agricultural plant pests has been conducted to gain information of epidemic situations and to establish a pest information system. It is the basis for a new pest early-warning system.
Chinas programme to harmonize national phytosanitary standards with the provisions of the IPPC include:
In recent years, China has adopted many international standards in its routine work. In general, however, there are still not enough national standards for plant quarantine.
To deal with the problem of invasive alien species China recognizes that it is necessary to cooperate with other countries or areas and to use the measures of the country of origin of an alien species as a reference point. It needs the techniques, methods of management, information and economic assistance to prevent the further spread and negative impacts of invasive alien species.
Developments in phytosanitary regulation in India
India has approved a new Plant Quarantine (Regulation of Import into India) Order, 2003 (the new Order) as a step forward in harmonizing Indias regulatory framework with the IPPC and internationally accepted standards and the World Trade Organizations Agreement on the Application of Sanitary and Phytosanitary Measures. Supporting improvements cover the entire gamut of the countrys quarantine activity and phytosanitary border controls, including import and export inspections, on-field surveillance for pests and vectors, treatment standards and processes, and certification methodology.
Plant quarantine efforts are focused on:
reducing the risk of invasive alien species by making imports of plants and plant materials subject to pest risk analysis
supporting agricultural exports by credible export certification assuring freedom from quarantine and regulated pests and vectors, including alien species for importing countries
facilitating safe global trade in agriculture by assisting producers, exporters and importers and by providing technically comprehensive and credible phytosanitary certification.
Noteworthy changes resulting from the 2003 new Order for plant quarantine include a wider scope of plant quarantine activities and pest risk analysis as a precondition for certain imports. There has also been a dramatic increase in notified points of entry, which have increased from 59 to 130. The new Order places a prohibition on the import of commodities contaminated with weeds and/or alien species. Import of packaging material of plant origin is restricted unless the material has been treated.
Agricultural imports are now classified as one of the following: prohibited plant species; restricted species where import is permitted only by authorized institutions; restricted species permitted only with additional declarations of freedom from quarantine and/or regulated pests and subject to specified treatment certifications; or plant material imported for consumption or industrial processing permitted with normal phytosanitary certification.
Indias new Order for plant quarantine aligns with the IPPC framework in several important ways:
Phytosanitary measures are designed to prevent global spread of plant pests and are based on scientific principles with pest risk analysis as the cornerstone.
Provisions have been made applicable to packages and transportation.
Inspection and certification provisions accord with Article IV of the IPPC.
Phytosanitary certificates are in the format of Article V of the IPPC and according to the plant quarantine requirements of the importing country.
There is emphasis on capacity enhancement and development and training of staff.
The new Order has been published on the Internet, is transparent and applies uniformly to all exporting countries or parties.
Indias action plan for pest risk analysis took effect from December 2003. A major feature is the establishment of a national pest risk analysis unit. The plan also includes organizing PRA training, establishing working groups and holding a workshop attended by national and international experts to prioritize crops and commodities for pest risk analysis. Commodities selected for detailed pest risk analysis over the next few years include fruit (e.g. banana, apple, citrus), pulses (e.g. black and green gram), cereals (e.g. pearl millet, maize, sorghum), oilseeds (e.g. sunflower, linseed, rape seed) and fibres (e.g. cotton, jute).
Indias national integrated pest management (IPM) programme is considered to be the mechanism with which to prevent and control the threat posed by invasive alien species within the country. State governments, non-governmental organizations, private sector organizations, research institutions and farmer self-help groups are involved in the surveillance and detection of pests and diseases. They are capable of taking environmentally friendly corrective action within the IPM scheme.
Points to note
Section 3 provides one generalized scheme and two country-specific accounts of legislative review and change to modernize national phytosanitary frameworks and include measures relevant to invasive alien species that are plant pests. Aspects of general relevance include:
Gathering and analysing accurate information on plant health status helps determine priorities for action.
The conformity of existing legislation with international instruments must be assessed before introducing change to plant health frameworks.
New legislation and other changes to phytosanitary frameworks must be given adequate resources for implementation.
The use of pest risk analysis is a critical and increasingly employed component of any modernized phytosanitary system.
This digest consists of information extracted from section 3, together with some background material and explanatory comment. For the full detail, argument, examples and supporting references, please refer to the following chapters 7-9.