25th Meeting of the Ramsar Standing Committee
|25th Meeting of the Ramsar Standing Committee |
Gland, Switzerland, 23 - 27 October 2000
|Agenda item 7|| |
Report and analysis on issues related to Resolution VII.12:
"Sites in the Ramsar List of Wetlands of International Importance: official descriptions, conservation status, and management plans, including the situation of particular sites in the territories of specific Contracting Parties"
Convention for the Conservation of European Wildlife and Natural Habitats
REVIEW OF THE CASE FILE SYSTEM
Paper by D E Pritchard
The issues addressed by this paper were discussed at two meetings of the Select Group for the Strategic Development of the Bern Convention in April and September 2000. Further to the conclusions in the paper itself, the Group considered that:
- The case file system is one of the fundamental top priority activities carried out in the framework of the Bern Convention.
- The on-the-spot appraisal process is a very useful element in acting on case files, and its use should be reinforced, with Secretariat staff taking part in missions (to cover any "political" negotiations), alongside specialist experts.
- There should be more transparency in the system, inter alia by The Secretariat submitting to the Bureau and the Standing Committee an annotated listing of complaints received, information on cases and the state of progress with them being made available on request, and criteria for decision-making and reasons for individual decisions being explained.
- It is important to admit cases which merit international attention, and not just those which involve an alleged breach of Convention requirements: to facilitate this a more flexible application of the rules could be envisaged.
- The case file system should be operated in an integrated way with increased use of rapid responses to emergency damage or threat to biological diversity (resulting from eg accidents or conflict situations).
- Positive examples of case files should be promoted.
- A more clear distinction between open/"active" files and information files should be made in their presentation to the Standing Committee.
- Further monitoring of the application of the Convention by Contracting Parties should be carried out (following the example of the Nordic country case studies).
- Purpose of this paper
- The role of the case file system
- The performance of the system
- Features of the Bern Conventions process
- Features of the Ramsar Conventions equivalent process
- Features of the European Unions equivalent process
- Features of the World Heritage Conventions equivalent process
- Features of the Council of Europe Diploma process
- Generic points
- Points for possible consideration in Bern
Purpose of this paper
1. This paper has been written at the invitation of the Chair of the Bern Convention Standing Committee. It is offered for the consideration of the Select Group examining strategy and aspects of the operations of the Convention during 2000, in association with the Committees Bureau. Its main purpose is to stimulate a review of the "case file" system, rather than to promote any specific prescription for its future.
2. It is suggested that a key feature of such a review should be to draw on the comparative experience from analogous processes in other Conventions. International NGOs such as BirdLife International and Wetlands International also have procedures for formal interventions in significant individual cases, and that experience has also been drawn on here.
The role of the case file system
3. The practice of examining "case files" in the Bern Convention was approved by the Standing Committee at its 3rd meeting in 1984, and a written procedure provisionally* adopted at the 13th meeting in 1993, set out in the Secretariat memorandum "opening and closing of files - and follow up to recommendations", document T-PVS(99) 16. (*Provisionally, because of apparently still unresolved European Commission concerns about the relationship between the procedure and EU infringement procedures).
4. The case file procedure offers a formal and systematic way of engaging the Secretariat and the Standing Committee in the examination, and hopefully resolution, of issues and problems which arise from time to time in implementing the Convention. Often, but not always, these involve threats to specific sites.
5. The procedure serves to draw out facts about the issue concerned, to raise awareness of it beyond the country concerned, to mobilise political support in an international forum for resolving the issue, and to debate, recommend and support potential solutions.
6. The process of presentation of concerns (eg an NGO complaint), debate, profile-raising and a decision about opening a file, should be considered together with two other potential steps. These are the provision for conducting a so-called "on the spot enquiry" or "on the spot appraisal"; and the adoption of formal Standing Committee recommendations, which, as the Secretariat memorandum points out, may in time come to constitute customary law.
7. Cases which reach this arena are usually controversial. Fundamentally the government of the country concerned, or the primary agency within it responsible for implementation of the Convention, is being offered help. However the process is characteristically driven by allegations eg by NGOs of a compliance failure of some sort, and therefore tends to have some flavour of "enforcement" as well as problem-solving. This helps to galvanise action, but obviously means that a sensitive diplomatic balancing-act is at the heart of the process. This experience is common to several Conventions.
The performance of the system
8. The performance of this system is hard to review objectively, but all would agree it has been patchy. At its best it can generate new wisdom and consensus, or remove an issue from an arena of conflict and stalemate to one where solutions are arrived at in face-saving and politically satisfactory ways. It is also potentially good at empowering a countrys nature conservation authorities with an international mandate and imperative, to help them prevail against domestic resistance. This may flow from publicity about the case, as well as the results of the procedure itself.
9. On the other hand it is open to many criticisms. Governments are known to obstruct cases which they find uncomfortable, and to procrastinate over actions. The greatest effort does not necessarily go into the most deserving cases. The time-cycles of meetings and the "bottleneck" filters of the Bureau and Standing Committee are not conducive to fast action. The process lacks legal "teeth".
Features of the Bern Conventions process
10. The existence of the 1993 approved written procedure is key, and it is worth regularly checking that the detail of this meets the need.
11. A purpose of the system (solution-oriented) is expressed: this is valuable.
12. The process is triggered by a complaint letter from any quarter to the Secretariat, and there are no stipulations about the form and content of these. The Secretariat conducts a basic screening as to the merits of the case. The Contracting Party or Parties complained against are kept informed at each stage, and have a time-limit for responding to the first (Secretariat) decision that the case warrants examination; though it is not said what happens if they fail to reply.
13. Normally the case must then be considered by the Bureau (which may decide to let it progress or not) and if passed, wait for attention at the next Standing Committee meeting, which could be as much as a year away. (Interim on-site assessments can be arranged in urgent cases).
14. The basis for these Secretariat and Bureau decisions is not specified, and there is no requirement for them to explain their reasons.
15. Apart from the on-site assessment facility mentioned above, there is no provision for deciding priorities among deserving cases, though in practice no doubt there is some limit on how many can be processed by a given meeting. The sequence in which they are listed on agendas can influence the extent of attention they receive.
16. Standing Committee decisions, by convention, are reached by consensus, so a complained-against Contracting Party which does not wish a file to be opened may simply block it. Under the rules the possibility exists for this to be overridden by a majority vote, but such would be resorted to only as a rare "crisis move".
17. Opening a file leads either to a Committee recommendation or an on the spot appraisal or both, and to reports on the implementation of these. Paras 7, 8 and 10 of T-PVS (99) 16 imply that these are the only outcomes envisaged, but the wording is somewhat ambiguous, and if outcomes other than these are envisaged it would be worth specifying what they might be. When all goes well, recommendations can be a useful political tool for action.
18. Once a file is opened, technically the only grounds for closing it are if "the difficulties relating to implementation have been resolved". In practice files have also been closed when the Committee (perhaps under urging from the Party concerned) concludes it is unlikely to achieve resolution. The basis for this is questionable.
19. In respect of "general" recommendations, the Committee can decide "that implementation is satisfactory" where "follow-up proves to be no longer necessary"; but no parameters for such decisions are specified, and there is no requirement for reasons to be given.
20. The issue of follow-up to "specific" recommendations has been reviewed by the Committee in the past (eg in 1993 and 1996), and a procedure for this has also been provisionally adopted. The description of the system implies that these must be preceded by and based on the opening of a file, but it could be worth expressly providing for them to arise in other ways too.
21. Reports on implementation of "specific" recommendations are supposed to be submitted by the Parties concerned, and consequent proposals tabled by the Secretariat. In practice such reporting is often lax, and the Committee (including observer complainants) struggles instead with last-minute and incomplete information, or no information at all, and the issue may then be delayed for another year (or until action becomes impossible eg a habitat is destroyed). Governments can repeatedly evade the will of the international community (and their Convention obligations) in this way.
22. The Committee can decide that measures adopted pursuant to a "specific" recommendation are "sufficient" (which is then grounds for closing the file) or "insufficient" (whereupon they can "consider", ie decide, that there has been a failure to comply with the Convention). In "certain cases of particular gravity" the arbitration procedure contained in the Convention may be activated. All of these decisions however flow from the reports referred to above, and can thus be frustrated by a simple failure to report.
Features of the Ramsar Conventions equivalent process
23. The Convention on Wetlands (Ramsar, Iran, 1971) established in 1990 the "Montreux Record", a list of wetland sites where an adverse change in ecological character has occurred, is occurring or is likely to occur. It does not purport to be a comprehensive list of sites in such condition, but merely those chosen at the discretion of Parties for international attention in this way, according to a written procedure last revised in 1996.
24. One of the consequences of listing can be the convening of an expert mission to the site to suggest or broker solutions, under a procedure initially termed the Monitoring Procedure, then re-named the Management Guidance Procedure, and now referred to as Ramsar Advisory Missions (RAMs).
25. Like the Bern procedure, the Montreux Record/RAM system has been successful in a number of cases, has failed to make progress in others, and admits in the first place only a minority of the cases that objectively would appear to merit its attention.
26. There has been a permanent presentational difficulty, in trying to make what is designed as a problem-solving procedure not appear too much like vilification or "blacklisting" of "guilty" countries.
27. Unlike the Bern case-file procedure, the Montreux Record is not predicated on an alleged breach of Convention requirements. (In fact, under Ramsar, failure to submit information on ecological changes affecting sites is itself a breach of the Convention).
28. The RAM procedure is a way of offering expert advice (eg involving consultants) which is externally funded (including a dedicated line in the Convention budget), and this acts as a significant incentive for action. There is some evidence that governments take pride in reporting successful conclusions in the Ramsar international forum, and this can also be a political incentive.
29. In theory the process is a continuous and open-ended one, and therefore has this advantage when compared with the Bern systems Bureau and Standing Committee "bottleneck"; but in practice Ramsars (triennial) Conference of Parties tends to be the reference-point which galvanises action. Limited capacity of the Secretariat at the centre to chase progress and organise missions etc is also a constraint (although there are ways that this might be improved).
30. Central to the Montreux Record procedure is the stipulation that a site can only be listed with the approval of the Contracting Party concerned. This is to allay fears of its use as an "enforcement" sanction. There is judged to be a tradeoff - some deserving cases will undoubtedly be blocked by unwilling Parties, but the price of trying to correct that might be to lose support for the procedure as a whole. It is noteworthy that Bern Parties by contrast have accepted a system that in principle could be used against their will, and could produce a finding of non-compliance. Ramsar offers no equivalent outcome.
31. The Ramsar procedure includes a standard (but voluntary) questionnaire for completion by the Contracting Party concerned: this might be something for the Bern system to consider. Cases are passed to the Conventions permanent Scientific & Technical Review Panel (STRP) for advice.
32. Periodic reports on the condition of sites on the Montreux Record are required, and Ramsar Parties have been reasonably diligent in providing these. Ramsar Advisory Missions produce reports which, among other things, constitute valuable "case study" material for wider use. The general Ramsar national report format (or "national planning tool") asks about this too, in its section 5.1.3.
33. Removal of a site from the Record takes place either when requested by the Party concerned (a necessary provision given that inclusion is subject to their approval in the first place), or if "there is no longer a risk of change in the ecological character" of the site. This is slightly curious, in that one way in which listing can arise is where change has taken place in the past and where listing is intended to aid remedial measures - logically in such a case removal should follow successful remediation, rather than the abatement of threat.
34. While there are no criteria as such for removing sites from the Record, the questionnaire nevertheless rather cleverly includes a section entitled "information for assessing possible removal of a listed site from the Montreux Record". This therefore prompts an explicit and broadly standard approach to justifying removal decisions, something which is missing from the Bern system. This has also recently (1999) been enhanced by a decision of the STRP that it will set up a subgroup on each occasion that a removal is proposed, to review the proposal. The Ramsar system does not otherwise provide for the giving of reasons, because decisions about adding or removing a site are for the Contracting Party to make, rather than a delegated supervisory body like a Secretariat. Nevertheless the questionnaire prompts do give useful parameters, and the approach in any case should be in accordance with the Conventions guidelines on maintenance of ecological character.
Features of the European Unions equivalent process
35. In the European Union there is a formal procedure for Member States or NGOs to submit complaints to the European Commission alleging a breach by a Member State of the provisions of a Directive, which may result in activation of the "Article 226 infringement procedure" under the Treaty of Amsterdam. Complaints can cover a range of matters from inadequate transposition of EU laws into national statutes to procedural improprieties in specific decisions, and include cases of actual or threatened damage to nature conservation sites where such damage runs counter to obligations in relevant Directives (principally the Birds Directive, Habitats Directive and Environmental Impact Assessment Directive).
36. There is a standard pro-forma on which to submit complaints, and a sequence of steps, with deadlines, for the Commission to seek information from/urge solutions on the Member State. On the spot appraisals or special missions can take place, though procedures for these are not fixed and they are undertaken in only a minority of cases.
37. The procedure must be based on a well-formulated allegation of a legal infringement. A key reason for this is that, unless it produces a solution by itself, the complaint forms a precursor to possible action by the Commission against the Member State in the European Court of Justice (ECJ).
38. For that reason the Commission is keen for the process to be activated only after first seeking to resolve the issue within the national jurisdiction concerned. "Twin-tracking" complaints together with domestic action is accepted, but ECJ action is unlikely without first exhausting the domestic possibilities.
39. Although certainly more of a technical infringement procedure than the Ramsar one, and to an extent more than the Bern one too, it is known for EC complaints to be used in the same "constructive" or tactical sense as these other two.
40. There is a serious capacity bottleneck at the Commission, which is unable at present to progress more than a minority of the complaints it receives. It is thus forced to prioritise, and for example is tending to favour action on cases which raise broad implementation and interpretation questions affecting a whole network of sites, or all Member States collectively, rather than "one-off" isolated decisions.
41. This system can ultimately produce outcomes which have the effect of constituting caselaw which is binding on all the Members of the Union, which the Convention systems described do not.
Features of the World Heritage Conventions equivalent process
42. The World Heritage Convention has provided for the establishment of a List of World Heritage in Danger since its adoption in 1972, by an article in its substantive text. Sites are entered either where assistance is requested, or where the World Heritage Committee itself decides there is "urgent need". Detailed eligibility guidelines were adopted in 1982.
43. A key implication of listing a site under these provisions is to help in securing financial assistance from the World Heritage Fund (although funding from this source is not limited to sites on the "in Danger" list). The provision in the Convention affording States Parties rights of consultation is couched in terms of a possible decision to refuse addition of a site to the List, rather than to add it. This implies that it may be regarded as an example at the "incentive" end of the spectrum, if for example the EU system is at the "control" end and the other two Conventions more hybrid in nature.
44. However it is also apparent that adding a site to the "in Danger" list can be viewed by some States as an adverse reflection on them, and therefore like the other systems the prospect of doing so can act as a source of pressure to resolve problems.
45. Time has not allowed further consideration of this system in the present paper, but this could be done at a later date.
Features of the Council of Europe Diploma process
46. The Council of Europe Diploma of Protected Areas is an award which recognises and promotes examples of good practice in protection and management of areas of environmental importance. It is thus primarily an incentive device.
47. However a significant feature of the Diploma is that it is awarded for a limited period, and can be renewed subject to a system of review and assessment. It has thus increasingly been able to function as a relevant instrument for responding to threats and other problems at sites, where the high-profile decision as to renewal of the Diploma may be a key spur to securing resolution of the problem.
48. Time has not allowed further consideration of this system in the present paper, but this could be done at a later date.
49. A central consideration in all these systems is the delicate political balance between incentive or assistance, and assurance of compliance or enforcement - ie the balance between "carrot" and "stick". Examination of analogous processes in other régimes shows a range of ways in which this balance is struck.
50. In this, a key point is whether the consent of the country concerned is required before the procedure can be progressed, or whether it is progressed by decision of the majority or by a "watchdog" body to whom this responsibility is entrusted, in the context of a shared international interest in the outcome.
51. For an enforcement procedure to be effective some sort of meaningful sanction must at least in principle be available.
52. For an incentive/assistance procedure to be effective it must be capable of meeting the need of the country concerned, eg by offering the right expertise within a sufficiently short timescale to solve urgent problems. The systems with the most effective incentives are those which can draw on funds dedicated to the purpose.
53. Whichever philosophy predominates, there may always be scope, and every effort should be made, to help governments ultimately present the solutions that are arrived at as examples of pioneering field-leadership, so they can reap political kudos at home and on the international stage.
54. Incentives of funding or kudos however need to be conditional, and ultimately they are part of a process which must serve the objectives of the Convention. Abuse of the system, or defiance of it, or procrastination, all need to be detected and legitimately countered.
55. Several international conservation instruments have evolved problem-solving processes, of which the Bern case file system is just one. In many countries, governments and NGOs potentially have a choice as to which system might be best in a given case. Enhancing awareness about the respective attributes of each should help in making wise choices on this.
56. On the other hand, the systems are of course not mutually exclusive. There is no reason why, in an appropriate case, all of them could not be operated in parallel.
57. More interesting perhaps than either of these thoughts is the prospect of how the different systems might be operated in a complementary manner. For example, it has already been known for a Bern Convention case file to be a decisive influence in bringing about a European Court of Justice action on the case in question, producing an outcome which the Bern Convention could not have produced on its own, but which the EU system may not have been sufficiently motivated to reach otherwise. The way this might play out will vary from country to country, according to cultural, legal and political preferences, familiarities and sensitivities. This might be an interesting area to explore further in future.
58. This paper has not attempted to evaluate the effectiveness or rates of success with these procedures, in solving or averting harm to nature conservation interests. Clearly that is an important question, but it is unlikely to be simple either to agree a method of addressing it, or to marshal the information required.
59. In the meantime this preliminary review suggests some points on which further thoughts might be developed for the Bern Convention.
Points for possible consideration in Bern
60. It may be worth standardising or systematising the collection of information using proformas or questionnaires. Among other things this may aid transparency and consistency of decision-making, and may reassure Parties that a "level playing-field" is in operation.
61. It could be an option to admit cases which merit international attention through the Convention where this would help solve implementation problems, and not just those which involve an alleged breach of Convention requirements.
62. It may be worth making provision, on an agreed basis, for deciding priorities among deserving cases (especially perhaps in respect of decisions made by the Bureau).
63. It is recommended that ways be explored to specify criteria and parameters for decisions, and to require that reasons be given when decisions are made, by the Bureau, Standing Committee or ad hoc groups of experts involved in on the spot appraisals. Explicit criteria and a broadly standard approach should be agreed for closure of files. Reasons should be given in particular for decisions on screening, closing files, and for not pursuing recommendations.
64. The scope for enhancing continuing or interim action between Standing Committee meetings, and the institutional mechanisms required for this, should be explored.
65. Provision could be made for decisions in relation to specific recommendations to be made on the basis of reports from independent experts or the Secretariats own analysis, as well as (ie not restricted to) reports from Parties. At present Parties can frustrate the process simply by not reporting.
66. The above suggestions would fit within the structure and philosophy (though not the detailed guidelines) of the current system. More radical possibilities (eg sanctions for infringements, budgets for case issues) should also be discussed.
67. It would be greatly welcomed if the Bern Convention Bureau were to use this opportunity to initiate a review of the future operation of the case file system. There is exciting potential to capitalise on the comparative experience of other Conventions and similar systems, and to explore complementarities and synergies between them.
68. While it may not be regarded by everyone as the foremost aspect of what the Convention represents, it is inevitable that, in the eyes of many, it is by this aspect that its success or failure is primarily likely to be judged. The case file system is something of a litmus test for the effectiveness of the Convention as a whole. There have been significant achievements from its operation to date; but also many weaknesses which should be addressed. This paper is a first contribution to what hopefully will become an active area of progress in the new century.
D E Pritchard
International Treaties Adviser
The Lodge, Sandy
SG19 2DL, UK
Tel: +44 1767 680551, Fax: +44 1767 683211
Convention on Wetlands (Ramsar, Iran, 1971): Action in response to change in ecological character of listed wetlands: A review of procedural aspects under the Convention, and options for the future. D E Pritchard.