TY - JOUR
AU - Goodwin, Edward, J
AB - Abstract This article concerns the likelihood that decisions adopted at conferences of the parties (COPs) to multilateral environmental agreements will influence the behaviour of States Parties. Relying upon a theory emphasising the importance of rational persuasion of decisions and the legitimacy of decision-making processes, this article explains how choices concerning the preparation of delegates and then participation of delegations at plenary meetings of the parties to environmental treaties might enhance the likelihood of those decisions having a positive effect upon the actions of States Parties. This is done using a case study of the UK delegation to a meeting of the parties to the 1971 Ramsar Convention on Wetlands of International Importance. That case study also provides examples of potentially positive modalities adopted by the UK, while also revealing suspected concerns for the future surrounding retention of experienced delegates and the impact of Brexit. 1. INTRODUCTION This article argues that the rules, customs, and tactics shaping the way a given State selects and prepares delegates to represent it at conferences of the parties (COPs) to multi-lateral environmental agreements (MEAs), and how that delegation then participates in these plenary meetings, has the potential to impact upon the likelihood of the decisions collectively agreed at COPs being followed by that State Party. The decisions adopted at COPs are significant for the efficient and effective operation of many environmental conservation treaties, as well as development of obligations.1 Thus, this article is not so much concerned with compliance with treaty obligations, but rather the influence of the non-binding decisions that are crucial to delivering the objectives of a conservation regime. The sets of rules, customs and tactics that operate around and within delegations are encapsulated in the term ‘internal modalities’. ‘Internal modalities’ are a neglected dimension in international environmental law studies. Certainly, there has been no attempt theoretically to link these modalities with decision influence. Such a first attempt could adopt a methodology, whereby fictional State practices are formulated and then assessed against a framework for decision influence. However, since producing grounded accounts of State internal modalities to MEAs has also been neglected, and little effort has been made to design a suitable process for capturing such data, the relevance and contribution of this article can be increased by preferring and offering a grounded and robust account of one State’s internal modalities for attending a COP. The grounded findings come from a case study into the UK’s internal modalities for their delegation to COP11 of the Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat (‘Ramsar’).2 This article will first introduce Ramsar, explaining how the regime (like so many wildlife treaties) relies heavily upon the decisions it adopts at COPs for its effective operation. Ramsar thus relies upon States acting in a manner consistent with these decisions, rendering it important to consider what draws States towards acting in conformity with them. Next, the article offers a theoretical framework explaining the characteristics and conditions of decisions and decision-making that increase the persuasiveness of decisions. The framework is then applied to the UK’s internal modalities. This highlights the practices that might have increased the persuasiveness of the decisions taken at the COP in question. The outcome of this analysis replaces a number of intuitive beliefs about best practice for internal modalities (largely concerning delegate experience and appropriate consultation) with evidence and concrete examples from a case study. New observations are also offered, such as how the UK may soon struggle (as developing States do) to retain institutional knowledge and experience. Further, there may be unique challenges created by the UK leaving the European Union. These insights gain extra importance in a context of the theory of persuasiveness of decisions. This then lends weight to investing in best practice concerning internal modalities for delegations, such as action on training and delegate succession planning, as well as for securing accessible and transparent consultation. The intended result is greater influence of decisions that are the mainstay operational tool for MEA regimes like Ramsar. 2. The Ramsar Convention Wetlands provide valuable ecosystem services including fertile habitat for biodiversity, flood control, water purification and carbon storage. Nevertheless, their continued provision has long been threatened by, inter alia, drainage in response to public health concerns, agricultural or urban development, and inappropriate water management.3 To combat this, the Ramsar Convention was adopted in the Iranian coastal resort of that name on 2 February 1971. In 1976, the Convention entered into force in the UK, and at the time of writing in 2018, 169 States were contracting parties.4 Ramsar’s jurisdiction covers wetlands within the territories of contracting parties. Wetlands are defined in Article 1(1) as: areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres. This incorporates an extensive range of natural and manmade wetland habitats, and their associated ecosystems, including coastal and inland wetlands. Significant to Ramsar is its employment of an inventory as part of its conservation strategy. Thus, wetlands falling within Article 1(1) may go on to be inscribed on the Ramsar List of Wetlands of International Importance (the ‘List’). Consequently, Article 2 calls for States Parties to enter wetlands within its territory on the List provided they are significant in ecological, botanical, zoological, hydrological or limnological terms.5 2.1 Substantive obligations Ramsar then provides for obligations applicable to all wetlands, with additional commitments applying to the sub-category of listed wetlands. The main obligation for all wetlands is that States Parties ‘shall formulate and implement their planning so as to promote… as far as possible the wise use of wetlands in their territory’.6 ‘Wise use’ was not defined in any greater detail in the treaty and thus the COP intervened by issuing a decision that stated that wise use of wetlands is taken to mean ‘the maintenance of their ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development.’7 Additional obligations supporting wise use are listed in Article 4 of Ramsar, such as to promote conservation by establishing nature reserves with adequate wardening, and to promote the training of personnel competent in the fields of wetland research and management. In relation to the extra obligations attaching to listed wetlands, the principal obligation is that States Parties ‘shall formulate and implement their planning so as to promote the conservation of wetlands included in the List’.8 While the standard of ‘conservation’ has come to be assimilated with wise use,9 it should be noted that the wise use of wetlands generally is qualified in Article 3 by the words ‘as far as possible’, unlike the obligation to conserve listed sites. The treaty further obliges States Parties to undertake a degree of additional investment in environmental monitoring. Under Article 3(2), contracting parties must institute mechanisms to facilitate detection of adverse changes in the ecological character of listed wetlands caused by technological developments, pollution, or other human interference. Ramsar then obliges States to inform the Convention Secretariat of any such change.10 A formal list of sites undergoing such change, known as the ‘Montreux Record’, is maintained.11 Ramsar’s remaining substantive obligations relate to State cooperation. For example, Parties are encouraged to exchange data, and research on wetlands and their flora and fauna.12 Further, under Article 5 they shall consult each other generally with respect to implementing their obligations, especially when dealing with transboundary wetlands and shared water systems. 2.2 Implications for the COP and this study The key point to take away from the above is that the substantive provisions of Ramsar are established in just four articles, comprising 14 clauses. The remaining nine articles contain definitions, establish the COP, other administrative provisions, rules for entry into force and withdrawal and depository arrangements. Ramsar is, therefore, one of the pithier treaties adopted within international environmental law. Consequently, and given the time-consuming and difficult nature of amending treaties,13 it has fallen to the COP to guide and develop State practice Given its crucial role in supplementing the few provisions of the treaty, it is worth putting the Ramsar COP in some context. In previous research, the author has recounted how COPs to MEAs were introduced and designed to provide flexibility and to overcome the failings of diplomatic conferences and Inter-Governmental Organisations (IGOs).14 COPs enabled regular meetings of the contracting parties thereby preventing initiatives from stalling or being ignored.15 Furthermore, environmental knowledge is continually evolving, even after an MEA has been concluded. Best practice can change, as can the conservation status of species. Environmental problems, therefore, demand regimes that are sufficiently malleable to respond to subsequent and rapid developments, and COPs meet this need far better than IGOs and diplomatic conferences.16 Ramsar was one of the first environmental treaties to provide for a COP, which are now held triennially. Further, from the outset, the COP has been supported by the IUCN-based Ramsar Bureau, which acts as the Secretariat.17 The ‘Introduction’ to this article detailed one type of work often undertaken by COPs, namely that of obligation development. To this can be added (i) systems management, (ii) strategic planning and (iii) reviewing compliance and progress.18 The COPs held under Ramsar are today competent to address multiple issues falling within all of these categories. The COP can commission and publish documents adding detail to the substance of treaty provisions; develop the rules of procedure for listing wetlands of importance; and, monitor the state of wetlands. For example, the regime has provided further elaboration on core commitments (like wise use) through the issuance and regular updating of guidelines and handbooks designed to help implementation.19 Indeed, the Guidelines for the Implementation of the Wise Use Concept observe it ‘is desirable, in the long term, that all Contracting Parties should have comprehensive national wetland policies, formulated in whatever manner is appropriate to their national institutions.’20 Such National Wetland Policies are vital to attaining wise use, since raising awareness, co-ordination, and planning on a national scale are vital elements to achieving this end. The guidelines also draw particular attention, inter alia, to impact assessment of projects upon wetlands, and the involvement of stakeholders and local people in formulating policies.21 This provides far more detail than the Convention text, and provides benchmarks that can be monitored via strategically drafted reporting forms that are submitted before every COP. The work slated for COP11 (which is the subject of the empirical research undertaken for this study) included resolutions on the modus operandi, delivery of advice and support, and priorities of the scientific advisory panel.22 Other administrative issues concerned budget reports and the hosting of the Secretariat.23 Some agenda items related to formal pronouncements on the conservation status of particular wetlands.24 The majority, however, had the potential to impact upon expectations of contracting parties such as the form and content of the Ramsar Information Sheet that needs to be produced for all listed wetlands,25 the implications of climate change on Ramsar,26 and a series of principles for the planning and management of urban and peri-urban wetlands.27 Of course, not all such resolutions were relevant to the UK.28 Whilst the range of activities of the COP is well known, the legal status of COP outputs is rather more complex and consequently an extensive body of academic literature has been published.29 The position seemingly varies according to the type of action being undertaken and whether it can be considered ‘law-making’, such as whether the COP is: acting as a forum for the formal amendment of the MEA;30 providing clarification pursuant to an enabling clause;31 or providing interpretive functions not pursued under enabling clauses but which Davies has rightly argued can amount to subsequent agreement or practice reflecting the parties interpretation of a treaty under the 1969 Vienna Convention on the Law of Treaties.32 These are interesting issues and much remains unresolved. Nevertheless, this requires no further analysis since the research underpinning this article does not turn upon the status of the decisions taken at COP11 to Ramsar. This is because the influence of the decisions upon a State party is the article’s primary concern and the approach adopted accommodates the different possibilities concerning legal status. In summary, the Convention text, like so many other environmental treaties (particularly those connected to conservation of biological diversity), is just the tip of the iceberg. Below the surface of the hard laws accepted in the treaty lies a large body of material adopted by the parties through decisions taken at the COP. It is crucial that these decisions have an influence upon State behaviour since those resolutions and recommendations specify conduct that should achieve the regime’s objectives. 3. The Study’s framework on decision influence Having given some international law context for the research, the methods and theoretical framework for this article can now be established. 3.1 Internal modalities and methods As indicated in Section 1, ‘internal modalities’ is defined for the purposes of this article as the set of rules, customs and tactics that operate around and within a group—in this instance that group being a State delegation. Internal modalities are common within groups, from sports teams to law firms. They are also tailored towards collective goals. Such goals can vary, for example winning a competition, or securing the services of the best graduating law students in a year. At the same time, other groups in the same sphere of life are implementing their own internal modalities. At some point (such as during a match, or during a recruitment round), these modalities become entwined and affect each other, ultimately producing a result. While internal modalities are adjustable, there will often be external rules or forces that shape these practices. For example, law societies regulate the legal profession, whilst various governing bodies order professional sports. The internal modalities of delegations to COPs behave in a similar way and setting. Delegations will have their own internal modalities governing how they prepare for meetings and how they will participate in the work of a session. These will be set according to their objectives and these modalities will ultimately become entwined with those of other States during COPs. What is more, autonomy to determine the nature of that internal modality is constrained to the extent that international law, the treaty establishing the COP and rules of procedure must be respected and followed. A significant task in this research was to gain as much detail on the UK’s internal modalities for COP11, as well as the external rules that constrained the UK’s freedom to design these modalities. This called for mixed methods research. The first method involved extensive desk-based reviews. The significant volume of material concerning the endeavours of the parties to MEAs suggests this ought to reveal a lot about the internal modalities of delegations. Further, the amount of material increases again if recognition is given to the fact that evidence relating to delegates and delegations to treaty negotiations in other realms of public international law and intergovernmental organisations is included. Use of such material is appropriate given the purposive and practical similarities in the operational remits of COPs, negotiating conferences, and intergovernmental organisations.33 Nevertheless, the reality is that insights into internal modalities are incomplete if limited to this material. Therefore, the second method employed was semi-structured elite interviews with those who were closest to designing and operating the UK’s internal modalities.34 Given the unexplored nature of the area, an overly rigid structure for interviews was avoided, with preference given to a loose agenda around pre-defined themes shaped by insights from the desk-based enquiry.35 This ensured flexibility to explore issues in greater depth and to test hypotheses, even as they arose.36 Interviewees were identified primarily via chain-referral to other important actors in the UK delegation and, due to mentions of UK NGOs in interviews, a decision was made to approach appropriate individuals in these organisations. Many had attended COP11. This offered counter-points to some of the delegates’ opinions. The study therefore relied upon and benefited from purposive, rather than random, sampling. Significantly, this means that the case study captured data for the complete population of the UK delegation, plus a number of other NGO connected actors. The result is original and rich data, which combined with the extensive desk-based research, provides a detailed, reliable and grounded case study. From this an analysis revealing the possible persuasiveness of the decisions adopted can be built using the following theoretical framework for decision influence. 3.2 A theory of decision influence Within a context of diminished enforcement capabilities, international environmental lawyers have long been interested in how to design and manage MEAs so as to otherwise influence State behaviour. Much of this has concerned achieving compliance with MEAs, which requires reaching a position of fulfilling treaty obligations. Various theories have been proposed concerning why States comply with such obligations, with Fitzmaurice highlighting six, including Chayes and Handler Chayes’ managerial theory, Brunnée and Toope’s interactional theory, and Franck’s theory of legitimacy.37 Seemingly, as Fitzmaurice states, the ‘theory which in the most apposite manner explains the compliance by States with a rule of international law – in this case the decision of COPs – is a matter of a personal choice.’38 While some of these will be woven into the theoretical account that follows, two others demand inclusion, not least because they tackle the wider notion of influencing behaviour, rather than the narrower concept of fulfilling treaty obligations.39 It is a theory built from the last of these that is this author’s chosen framework for analysing the data collected. First, Mitchell suggests that environmental agreements influence behaviour through a ‘logic of consequences’ and a ‘logic of appropriateness’.40 The former regards States as rational actors, behaving according to calculations as to what is in their best interests.41 Indeed, it is worth noting that in Chayes and Handler Chayes’ managerial theory of compliance they too accept that self-interest enters into most if not all behaviour that deviates from directions.42 The ‘logic of appropriateness’ reflects the idea that States may regard themselves in a particular light and wish to be perceived in that way by other States, such as being ‘green’ or ‘law abiding’. Thus, MEAs signal how particular conduct will be regarded.43 Secondly, the work of Bodansky more than deserves inclusion in any research into decision influence. Bodansky has conducted a detailed assessment, synthesis, and mapping of the extensive literature in the field from the 20 years before he was writing, and from which he has extracted three common bases of influence upon States. These three bases—namely power, rational persuasion, and legitimacy—can act in combination or alone.44 For example, a decision might be followed because of a third party exerting power or force.45 This might include threats of trade sanctions, or measures imposed by COPs as part of compliance procedures.46 Presumably, Mitchell would agree and link such power to a profound effect upon a State’s logic of consequences. Crucially, for the purposes of this research, that type of force comes after the production of a decision at a COP. Given that this study is concerned with the internal modalities for delegate preparation and participation for the COP, its focus is upon events prior to the adoption of a decision. This article will not, therefore, offer insights into post-plenary pressure. However, the position is different with regard to rational persuasion and legitimacy, and it is these two theoretical bases that underpin the analysis of the data acquired in this research. 3.2.1 Rational persuasion Rational persuasion suggests that if the actor regards a direction as convincing in some way, this can lead to particular behaviour. This may be because it is interpreted as being in the interest of a State or the individual authorised to act on behalf of the State.47 Also, a decision may be rationally persuasive for other reasons; maybe it is convincing according to science, the merits of a well-reasoned judgment, or a sense of justice.48 Here connections can be made to Mitchell’s logic of consequence. For example, the science convinces a State as to the likelihood of an undesirable result. Connections can also be made to the aforementioned ‘logic of appropriateness’. A State may regard itself as being law-abiding and thus a law-making decision pursuant to an enabling clause, or convincing judicial reasoning as to the correct legal position, will direct the State accordingly. From a practical perspective, if a COP decision is to be rationally persuasive, logically this appears dependent upon three crucial stages. First, identifying key actors who need to be rationally persuaded. Secondly, identifying the various grounds upon which a proposal might then be viewed as rationally determined by those actors. Finally, having identified which grounds are likely to rationally persuade key actors, ensuring that the decision issued by the COP reflects them effectively. The analysis of the UK’s internal modalities in the following sections will highlight how each of these stages of rational persuasion played out in the course of the process of negotiating and adopting decisions, from the perspective of the UK delegation. It will further offer best practice recommendations for how to bolster the rational persuasiveness of a decision at each of these three stages, with a view to thereby enhancing the likelihood that the decision adopted will influence the behaviour of the UK, in line with the overall objectives of the treaty. 3.2.2 Legitimacy Even in the absence of power, and if an individual is not rationally persuaded by a decision, it is claimed they may still follow a decision because of the perceived legitimacy of the international regime’s authority over them.49 Legitimacy is understood and used in many different ways by different people, but the data capture method as designed in this research was best placed to focus upon normative legitimacy.50 This form of legitimacy concerns the extent to which a regime conforms to normative standards against which it is judged. It is about the qualities of the ruler.51 Normative legitimacy can relate to the legal system itself. For instance, regarding standards of legitimacy for a legal system, under Brunnée and Toope’s interactional theory,52 law’s value lies in the sense of obligation it generates.53 That obligation is generated where States and actors perceive law-making to be legitimate.54 In Brunnée and Toope’s theory, legitimacy flows from three factors55: (i) shared understandings of the role of law and particular norms; (ii) adherence of the norm to criteria of legality, such as the fact that a norm must not demand the impossible56; and (iii) reinforcement of the norm through a continuing practice of legality. Research into the internal modalities of delegates to COPs could be used to explore the possible normative legitimacy of decisions since COPs play a key role in nurturing obligation, as the forum for building a community of practice, and sustaining shared understanding and interaction within it.57 For example, the community of practice operating under an MEA thrives through nourishment from others (eg industry bodies or environmental NGOs) participating at the national and international levels.58 This means preparation that facilitates communication and interaction with these communities ought to be valuable. Preparation might also establish that which is practicable and consistent with national and international commitments already undertaken by a state, thereby delivering on elements of legality. However, with so many different ways of approaching legitimacy, and only so much space available, this article leaves to a later date using the interactional theory as a framework for the analysis of the data relating to the legitimacy component of persuasion. Instead, this article will adopt what Bodansky assessed to be the more prevalent conception, namely the legitimacy of the regime bodies that issue directions.59 The links to this in the data obtained are more readily apparent. Political scientists assessing the normative legitimacy of a governing body (as opposed to the legal system), draw a distinction between input legitimacy (standards surrounding the process of issuing directions) and output legitimacy (referring to the results of issuing directions).60 For output legitimacy, the results ought to be effective and/or equitable. As Daniel Esty observes, and utilising the work of Max Weber, ‘[A] demonstrated capacity to deliver good outcomes has been the main attraction to nation-states of delegating elements of policymaking to supranational bodies’.61 This requires a well of expertise from which to draw, and the production of rational analysis leading to good outcomes.62 The aspects that drive input legitimacy are numerous. Democracy is widely regarded as a cornerstone for maintaining the legitimate exercise of authority by those governing at the national level. This is reflected in environment ministries led by elected government ministers; the UK’s Department for Environment, Food and Rural Affairs (DEFRA) being such an example, as well as a crucial body within this study. However, the ‘democratic deficit’ within international governance means it is impracticable to have accountability via elections, and thus achieve this in full at the international level.63 Instead, Esty argues that the focus needs to be upon other features of democracies, and thus ‘quasi-democratic legitimacy can be established through mechanisms that force supranational authorities to be more attentive to their representativeness and accountable to the public(s) they serve’.64 This links to some of the other factors that drive input legitimacy. For instance, it requires: the international body to operate according to (stable) rules and traditions; ideally having ‘check’s and balances’ designed into the regime structure akin to the separation of powers within nation States; a transparent decision-making process offering chances for debate and dialogue between those stakeholders representing a range of views; and adherence to procedures that demand that the authority, inter alia, is transparent in its operation, and offers opportunities to review their actions.65 As will be claimed, many of the factors comprising input legitimacy and output legitimacy could be enhanced through the adoption of certain practices for delegation preparation and participation. 4. The UK’s Internal Modalities for COP11 It is proposed that if the contracting parties to Ramsar were able at COP11 to issue decisions that are regarded by their target audience as rationally persuasive, and/or in a context where crucial authorities are considered as acting legitimately (using the components of input and output normative legitimacy), then this ought to have an impact upon the likelihood of these decisions influencing State action. In what ways might the internal modalities adopted by the UK therefore secure such rational persuasion and legitimacy? In order to answer this, data on the UK’s internal modalities was acquired using the aforementioned mixed methods. The data is presented in this section under the following internal modality themes: (1) populating delegations; (2) pre-COP preparation; and (3) delegation participation. Each section begins with a review of the published evidence before overlaying the findings of the empirical research. 4.1 Populating Delegations When the UK exercised its right to send a delegation to Ramsar COP11, it needed to select individuals to act as delegates on its behalf. This entailed both a decision concerning personal attributes, and about the number of people who should be sent. The internal modalities deployed in this context are constrained and shaped to a small degree by forces external to the UK government, for example treaty provisions. 4.1.1 Desk-based findings Ramsar does not place any restrictions upon the number of delegates a party, such as the UK, can select to attend as its representatives. The Rules of Procedure merely indicate that someone needs to be designated as the head of the delegation,66 and that all representatives and advisors should carry the required credentials from their State.67 Past practice of the UK is revealed in the records of participants and is set out in Diagram 1.68 This indicates that, whilst not sending some of the largest delegations to the plenary meetings,69 the UK generally opts to send an above-average-sized group, such as the four delegates sent to COP11. Diagram 1 View largeDownload slide Size and experience of UK Delegations to Ramsar COPs 1980–2015.73 Diagram 1 View largeDownload slide Size and experience of UK Delegations to Ramsar COPs 1980–2015.73 A second dimension worthy of consideration is expertise and previous experience of attending COPs. The Ramsar Convention is unusual amongst MEAs70 in that Article 7(1) of the treaty states that representatives selected to attend on behalf of contracting parties ‘should include persons who are experts on wetlands or waterfowl’. This expertise could come from scientific, administrative or other relevant knowledge or experience.71 That said, the constraints Article 7(1) imposes on modalities are weak; entreating States rather than obliging them to appoint such delegates, and leaving open-ended the precise level of knowledge or experience regarded as appropriate to satisfy the request. Furthermore, the attendance records for Ramsar COPs are unreliable indicators of individual expertise or knowledge. One thing that can be extracted from the attendance records is whether a delegate has had previous experience of representing a State at an earlier COP. Thus, where the UK had the option of sending someone who had previously attended a Ramsar COP, it did so on all but one occasion, as reflected in Diagram 1.72 Indeed, for COP11, three of the four delegates had this type of experience. Of course, research of this sort based upon UK attendance records reveals little about the effects of numerical strength, substantive expertise, or forensic experience upon UK negotiations and engagement with COPs.74 This was, therefore, something factored into the design of the semi-structured interviews. 4.1.2 Findings from the interviews DEFRA manages the UK’s internal modality for preparation and participation in Ramsar COPs. Desk-based research had already revealed that DEFRA elected to send four delegates to COP11 to represent the UK, three had experience of previous Ramsar plenary meetings, and one of the three had attended all of the preceding five COPs dating back to 1996. The interviews supplemented this, revealing that the fourth delegate had extensive horizontal experience of COPs under the treaty regimes governing climate change, trade in endangered species, and migratory species regimes. Interestingly, the interviews also revealed that this experienced delegation was put together at a late stage due to individuals originally selected (who had direct responsibility for Ramsar within DEFRA) suddenly being unable to attend. Nevertheless, the replacement identified at short notice to act as Head of Delegation had played the same role 13 years before at Ramsar COP7 and in the meantime had been closely involved with the UK’s Sites of Special Scientific Interest.75 The latter is the principal UK regulatory vehicle for implementing Ramsar. A different last minute substitute had also been the policy coordinator for the previous year’s COP in South Korea, as well as the lead for national implementation of Ramsar commitments concerning designated sites. Retention of these staff members within DEFRA afforded the UK an effective and reflexive response to the situation. Interview responses about the UK’s approach to selecting the number and required expertise of delegates, revealed two things. First, the COP agenda influences the selection process. This means identifying the items that are of greatest interest to the UK and the likely number of relevant working groups, and then ensuring that the appropriate people attend to engage in negotiations on those items. Secondly, DEFRA’s internal modality seeks delegates who can assess proceedings from at least a policy point of view, as well as from an ecological and ornithological perspective. In addition, sometimes legal input is needed. For instance, given the scheduled discussions at COP11 concerning the institutional hosting arrangements for the Ramsar secretariat, the legal department within DEFRA recommended the inclusion of an international biodiversity lawyer. One interviewee noted that they were fortunate to be representing a State that was able to field such a multidisciplinary team. Another observed that, even though the article described ‘a “should” not a “shall”’, the delegation that was sent left little doubt about the UK satisfying Article 7(1)’s call for the inclusion of an expert on wetlands or waterfowl. Turning to further issues concerning delegate experience, UK delegation interviewees affirmed the huge importance of this for the quality of engagement. One opinion expressed was that inexperience because of high turnover of personnel affected a State’s effective representation, and the regime’s efficiency and capacity to produce a consistent body of work that builds on itself. Newly appointed individuals did not have as effective a grasp of the history of Ramsar COPs, resulting in suggestions that had already been tackled a few cycles previously. During the interviews there was sympathy expressed for delegates parachuted into a position and without the time to review all of the regime’s previous work. However, it was felt this led to dependence upon the Ramsar Secretariat as well as longstanding members. Conversely, experience of Ramsar meetings offered significant advantages since, as one interviewee put it: so much is about trust, it is about building relations with other countries, them getting to know you, them knowing they can trust you and knowing they can work with you.76 Such delegates could, therefore, constructively influence an MEA meeting given their knowledge of ‘the influencing bottlenecks’ and how they can best do their advocacy. Certain individuals with extensive experience of Ramsar were noted as being widely respected for their knowledge, which, in one case, led to an informal leadership role within the African group of States, as well as command of delegates’ attention when they wished to make a point. The interviewees offered their own views on the best way to acquire such expertise and experience. All those interviewed believed the best method was to learn on the job alongside more experienced colleagues. Good opportunities for such learning were smaller meetings held between Ramsar COPs or, for those that are members of the EU, when their government was holding the Presidency and therefore needed to staff bigger delegations to complete the additional tasks flowing from that responsibility. Some interviewees still saw some merit in formal training. For example, interviewees mentioned a past training workshop organised for African States due to attend a different MEA’s COP. The interviewees felt this had led to significant engagement in that plenary process from those African States, a renewed sense of collective action amongst all States attending, and ownership of decisions and initiatives adopted at the COP and advocated for by the African nations that had attended the workshop.77 In terms of Ramsar led teaching, one interviewee mentioned that Ramsar runs briefing sessions during COPs that enable individuals from the responsible working groups to explain significant proposals that they have developed. This provides all delegates with an opportunity to increase their knowledge and understanding of key items on the COP agenda. However, there was concern expressed about the future ability of the UK to field experienced delegates for Ramsar because UK delegates with experience and institutional knowledge were approaching retirement from service. It was felt a plan needed to be put in place to train successors through attending COPs or other regime meetings. 4.2 Pre-COP preparation The UK as a State is a complex entity constituted by many parts. The UK has an executive branch divided into multiple ministries, a legislature, devolved administrations, and overseas territories. This generates the potential for great diversity of opinion on issues the COP is considering.78 Since wetland conservation depends upon successful integration across many sectors of public life and in such a complex institutional environment, the UK’s modalities for consultation as part of preparing to attend COP11 was anticipated to be a key topic for research. 4.2.1 Desk-based findings Within DEFRA there are policy and legal divisions, and they in turn work closely with the Joint Nature Conservation Committee (JNCC)—the public body that advises the UK government on national and international nature conservation. Since divisions of DEFRA and the JNCC are in different locations, the individuals who are responsible for Ramsar implementation are spread between Bristol, London and Peterborough. Furthermore, wetland conservation requires the input and support of other bodies. For example, wetland conservation involves farming, infrastructure design, water resource management, tourism and town planning. Policies implemented by other ministries and national NGOs, therefore, affect wetland conservation. Finally, the UK has devolved governments in Northern Ireland, Scotland and Wales, as well as 14 British Overseas Territories. The risk this complexity creates is that vital information might be lost if DEFRA’s modalities for consultation are limited, and/or that certain groups, due to their power to engage with the process, capture the framing of the State’s position. Consequently, it might be thought that best practice for preparing the delegation for COP11 would be to engage with all of the noted branches and individuals as part of defining the national interest on a given issue.79 Indeed, the few external forces looking to shape upon internal modalities on preparation push for such an approach. Principle 10 of the 1992 Rio Declaration recommends that environmental issues are best handled with the participation of all concerned citizens.80 Article 3(7) of the 1998 Aarhus Convention81 requires the UK (as one of the contracting parties) to promote transparency and participation in international environmental decision-making processes. Greater detail was added to this in the Almaty Guidelines to the effect that ‘public participation generally contributes to the quality of decision-making on environmental matters in international forums by bringing different opinions and expertise to the process and increasing transparency and accountability’.82 Thus, participation should be as wide as possible, with particular attention given to: members of the public most affected by an environmental issue; public-interest organisations; and those contributing to, or able to alleviate, a problem.83 However, this may be difficult in practice given the limited time available to consult the many and diverse groups linked to wetlands. Ramsar’s Rules of Procedure (an additional external constraints on modalities) create part of this time pressure. For example, the rules provide that the provisional agenda and dates for the plenary meeting will be circulated one year in advance.84 The documentation providing detailed information on agenda items is circulated at least three months before the opening of the COP.85 This means that there is limited time to consult on the proposals. Potentially, such constraints will be mitigated by the fact that significant developments take far longer to mature and will have been the subject of work in previous COPs or working groups. Nevertheless, there will remain practical barriers to full participation in consultation, and the danger arises for debate capture by a select few and that vital input will be missed. 4.2.2 Findings from the interviews DEFRA’s aim is to provide each delegate with briefing documents that set out the UK’s position on each agenda item. These can be used as reference materials during the COP events. These briefing documents are produced in the light of the consultation process. As to the modalities on consultation, the data acquired through interviews divides between internal and external consultation. As to internal consultation, the DEFRA-convened team of delegates initiated the process for COP11. The delegates produced a first draft ‘position paper’ responding to the proposals, drawing upon their technical, legal, and policy backgrounds. Not only did this enable them to set the tone for the UK’s position, but also ensured that proposals were assessed from the various professional perspectives of the delegates. A resolution viewed as benign from a policy perspective, but not from a legal viewpoint, would still get highlighted. Wider internal consultation followed, with the draft position paper circulated to the appropriate leads within DEFRA divisions and then around other government departments, devolved administrations and overseas territories. Because the UK had established a National Ramsar Steering Committee,86 the appropriate people to consult outside of DEFRA were readily apparent. DEFRA chairs this Committee, which includes individuals from government departments and devolved administrations.87 It meets annually, but otherwise operates in a virtual environment, and maintains regular communication via email and the internet. Therefore, face-to-face meetings are unnecessary as Ramsar information can be distributed electronically and views canvassed from around the country through a central co-ordinator. Such a process is aimed at drawing out those departments with concerns on draft resolutions that may not otherwise be obvious to DEFRA. Sympathetic negotiating positions can then be formulated and included in the delegation’s briefing documents. One related issue is whether responses, and the negotiating positions based upon these responses, enjoy the support of suitably senior figures within the government departments. Given that DEFRA is not involved in discussions conducted in other departments, it has to take it on faith that the input received has been ‘signed off’ by suitably authorised individuals. One interviewee also suggested that the final, collaboratively formulated, position would receive ministerial approval as ministers are provided with a shorter summary of the resolutions and proposed stances. Thus, the delegation sent to the Ramsar COP can attend as the authentic representative of the UK government. The modalities for preparing to attend COP11 also needed to capture the views of external groups. This meant UK civil society organisations and EU Member States. As to the former, interviews revealed that practice continues to evolve. Pre-COP11, modalities had initially utilised meetings between delegates and UK civil society organisations during Ramsar COPs, in order to discuss their respective positions and to resolve any disagreements. This, however, limited the range of consultation to those NGOs with the resources to send representatives to meetings—predominantly the RSPB, and the Wildfowl and Wetlands Trust—and thus produced a rather limited constituency. Around 10 years ago, this approach was supplemented by external consultation pursued through the Ramsar Forum. The Ramsar Forum, one respondent suggested, was effectively the UK’s national Ramsar committee. As such, it allowed a wider range of extra-government perspectives to be fed into national Ramsar positions, and in a more equitable manner. The Forum comprised representatives from the National Ramsar Steering Committee, plus civil society groups invited by that committee. Permanent invitees included 15 NGOs, such as the Wildfowl and Wetlands Trust, UK Major Ports Group, and the National Farmers Union.88 One interviewee observed that, owing to the previously described circumstances surrounding last minute changes to the delegate identities and the shorter timescale available for preparing for COP11, on this occasion the Forum could not be consulted in full. A targeted, lighter touch was all that was practicable. Thus, government positions and lines were conveyed to key organisations, such as the RSPB, and the Country Land and Business Association. There then followed a two hour conference call with interested parties. One delegate intimated that, fortunately, this was sufficient since there seemed to be consistency between the government and NGO positions. The UK delegation interviews also elicited opinions on the changes that had been witnessed over time in the operation of the Forum. Some noted that there had been good engagement with it as UK sites for Ramsar listing were identified.89 However, once that process had concluded, civil society interest and attendance fell away. Another respondent, who offered a similar opinion on the levels of interest, was keen to highlight that this should not be misinterpreted. Wetlands remained of interest and concern for all stakeholders; it was simply that wetland conservation had evolved in the UK to a stage where functional discussion about conservation happened through other channels. Well-established channels of communication now existed between government and key players if a matter of national concern arose. Furthermore, ultimately the Ramsar COP had (for UK NGOs at least) become a forum for: feeding into larger wetland conservation issues at a global scale against which, perhaps, some of our UK issues are rather more minor… I think they’re [the NGOs] playing quite a nicely judged game of priorities that actually in a global context some of the issues that are important for the UK are actually probably best dealt with at home by trying to speak to the minister… rather than taking it to an international forum… In contrast, it was believed that in other States ‘where wetland conservation is in its infancy then having a national committee where you can get together all of the various players is crucially important’. Responses from NGO participants in the interviewing process were in line with those expressed by the UK delegates, but they also highlighted a UK specific feature. Thus, the representatives of one NGO agreed that a national wetland issue ought not to be pursued through a Ramsar meeting unless it corresponded with issues in other countries, or that the wetland habitat in question was very rare and in imminent danger of being lost. They accepted that, for their organisation, the normal course of action for an issue confined to the UK would begin with their own established lines of communication with government. The NGOs recognised that outside the UK these channels of communication may not be available ‘depending upon the country’s mentality and whether the Government is used to working with civil society’. This could lead to a need for greater campaigning in some countries where government/civil society interactions were lacking, in comparison to the UK where, at the time, ‘the Government is normally consultable if it does anything really stupid’. The above has focused upon national consultations. However, at the time of the research and writing the UK was a member of the EU. Even though the EU is not a contracting party to Ramsar, UK membership carries expectations to engage in consultations with other Member States within areas of EU competence. The EU has competence in all aspects covered by Ramsar except for setting Secretariat budgets and hosting arrangements. This expectation is encapsulated in the duty of sincere cooperation and the notion that Member States are acting as trustees of the Union interest in situations where the EU lacks the standing to exercise its competences.90 The interviews indicated that the modalities for EU consultation involved the lead being taken by the State then holding the EU Presidency. The interviewees surmised that pre-COP meetings in Brussels are predominantly concerned with trying to find consistency in views on matters, and allocation of lead roles on issues once at the COP. The information acquired was then fed into the UK briefing documents produced in advance of the COP. 4.3 Participation in negotiations The moment when the various internal modalities of State Party delegations to Ramsar intersect in the collective production of decisions is during the actual COP. At this moment both the preparatory stages, and the modalities for participation at the plenary session, become intertwined. It is to the latter set of modalities – on participation – that this section finally turns. 4.3.1 Desk-based findings The external constraints upon a State’s internal modalities for participation are derived from the founding treaty and the rules of procedure. The framework these set, within which the internal modalities operate, has a profound effect upon the parties’ expectations and power relationships.91 Most obviously, the rules defining the basis upon which decisions and resolutions will be adopted can have a particular influence upon the way States negotiate. Steinberg describes these decision-making rules as either majoritarian, weighted voting or based upon consensus or unanimity; the last reflecting an approach of sovereign equality.92 Ramsar provides that every effort must be made for decisions to be adopted with the consensus of the parties present at the COP; voting is only permitted as a last resort.93 This favouring of consensus decision-making raised interesting questions that the interviewing stage looked to explore. For example, does this lead to ambitious States holding out for significant concessions through which their support, or at least silence, can be bought? On a different tack, with non-plenary contact groups and discussions being widely utilised at COPs, how do delegations operate to ensure they have access to these discussions?94 In theory, an uninvolved State may raise an objection in plenary following the outcomes of those contact group negotiations, resulting in the decision either being defeated or delayed until that State has been consulted. However, how would such action be regarded? A final area of interest concerns the general strategy adopted by the delegation with a view to influencing proceedings. Here there exist theories concerning different forms of leadership,95 and more recognition that in epistemic communities the claim to knowledge is a source of influence.96 4.3.2 Findings from the interviews The interviews generated data broadly relating to coordination, tactics, and the Ramsar consensus-based decision-making process. These will be covered in turn. The head of delegation leads basic coordination of the UK’s engagement. The head determines (i) which delegate should attend a given working group, (ii) when contact needs to be made with advisors back in the UK and (iii) when a stance or position on an agenda item can confidently be advanced as being one to which the UK can commit. The interviews also revealed that, whilst having multiple delegates enabled attendance at parallel discussions, the ensuing atomisation of the delegation necessitated significant efforts towards maintaining consistent and acceptable positions. UK co-ordination meetings began at 06:30 in the morning, followed one hour later by EU co-ordination. COP proceedings would begin at 10:00 and would finish around 18:00, with regular ‘catch-up’ coordination meetings during the day and later in the evening. The facility for coordination with non-attending colleagues back in the UK remained possible due to modern communications, and one interviewee indicated that strategic pauses could be taken in Ramsar proceedings if the chair of a session felt it was beneficial to give delegates a chance to communicate with their home departments. Furthermore, the briefing document produced (as described in earlier sections) continued to evolve as part of this coordination process, and was a constant point of reference. Tactically, being part of the EU shaped the UK delegation’s approach. Thus, ‘different countries took the lead on behalf of the other EU Member States on particular resolutions… it was a very effective way of… playing to the strengths within the EU family.’ Indeed, the UK led in some contact groups on behalf of the EU, supported by a small team made up of individuals from EU States. The EU’s collective strength also came to the fore when progress seemed to be being blocked by one State. The EU group was able to select a particular individual with key experience from within their ranks, and that individual was able to engage that State’s delegation directly to resolve the impasse. Moreover, in plenary, an intervention by one EU State from behind their national flag still indicated to the whole plenary that that State was effectively speaking for all 28 EU Member States. In addition to this, the interviews revealed some expected tactics. Experience within the UK delegation helped to identify key individuals within other State groupings. Given the respect accorded to the expressed opinions of these individuals within their coalitions, spending time explaining and seeking to persuade them of a given stance (if successful) was an efficient way of bringing a larger group of States towards a preferred position. In contrast, certain States were known to approach COPs with set positions and no intention to engage in negotiations and compromise. The tactic here was, nonetheless, to make efforts to approach them during informal occasions (such as coffee breaks) in order to try to find out if there was a way to secure a resolution that satisfied each other’s position. The UK regarded negotiations as needing to continue, in the last resort, without these parties, but in the hope that in plenary matters would ultimately proceed without objection. Having covered coordination and tactics, consensus decision-making was also explored in the interviews. The general observation was made that the ethos within Ramsar was to value consensus decision-making to such an extent that much effort was dedicated by all involved to accommodate differing views. This promoted ‘buy-in’, since participants would not feel they were being pressured into something they did not want to do. Consensus decision-making, however, also created tension as a small minority of States could dig in to ensure that the consensus accommodated their view. This could lead to decisions being watered down to the point of meaninglessness. Nevertheless, States that had missed a contact group, and who then looked to use the plenary and the need for consensus so as to have their say, were regarded as taking ‘a bit of a nuclear option’. The implication being that diplomatically, exploiting the need for consensus so as to overcome delegation numerical strength failings, was unacceptable. Having the capacity to send enough delegates who could attend key groups, therefore, remained important.97 At COP11, one major item on the agenda was making a decision about whether to relocate the convention’s Secretariat. This contentious issue became entangled with the ethos of consensus decision-making, and lay behind a number of responses connected to the process. Thirty States appeared to be committed to relocating the Secretariat from the International Union for Conservation of Nature (IUCN) in Gland, Switzerland to being operated under the United Nations Environment Programme (UNEP) at one of its locations. This was for a variety of reasons.98 The majority, however, felt that this was unnecessary.99 It was thus clear that the two positions were a long way apart, but, given the extended period of uncertainty over the hosting arrangements, many were strongly in favour of concluding and closing the matter. The Chair of the COP therefore took the contentious decision of calling for a show of hands at the start of the plenary meeting to see if there would be enough support for change if consensus could not be reached and voting was required. The subsequent vote indicated there would not be the two-thirds majority at that time to approve a move from IUCN to UNEP.100 Given that the UK was in favour of the status quo it is unsurprising that the interviewees generally supported this indicative vote, despite the general culture of consensus decision-making. One observed that those against the indicative vote were generally those who wanted the Secretariat to move to UNEP, but were aware that they were unlikely to win if the matter was determined by a final vote. Another noted that the indicative vote did not hinder discussions and that many States felt the Chair could lead the discussion as it wished, and the show of hands would be a useful barometer to know where matters stood. By establishing that there were more than a third of States who would block a move to UNEP, the parties knew that move was going nowhere. Consensus negotiations could, therefore, be conducted on the basis that the Secretariat would be located with IUCN, and solutions could be pursued on that footing. 5. The UK’s Internal Modalities For COP11 and the Likelihood of UK Compliance In Section 3, it was proposed that, according to theory, decisions at COP11 were more likely to influence UK behaviour if they were regarded as rationally persuasive and/or the issuing authority normatively legitimate. Section 4 then established in detail the internal modalities for the UK in connection with their engagement with the COP11 process and the decisions taken at that session. In this section, it is necessary to step back from the detail to take a broader perspective through the lenses of normative legitimacy (both the input and output forms of legitimacy detailed in Section 3) and rational persuasion. These lenses draw out from the data and bring to the foreground those modalities that these theories suggest might101 impact upon the persuasiveness of the decision from the perspective of engendering suitable UK action in response. 5.1 Legitimacy It will be recalled that in the theories on normative legitimacy of authorities102 (normative being a reference to the qualities of the ruler) a distinction exists between input and output legitimacy. As was explained in Section 3.2.2, for output legitimacy (referring to the results of issuing directions), (i) access to experts, and (ii) due delegation to such individuals in order to generate rational decisions insulated from political values, is known to be crucial.103 For input legitimacy (standards surrounding the process of issuing directions) it was also established in Section 3.2.2 that inter alia (a) transparency, (b) stable rules and traditions, (c) public participation, (d) due deliberation and (e) democratic decision-making, are vital.104 In the following sections, the data will be used to highlight how these factors in output and input legitimacy might be being secured. The crucial authorities in this study are obviously Ramsar (and its COP), and the lead-implementing agency within the UK (DEFRA). DEFRA, for instance, must be viewed as normatively legitimate among the key actors it will seek to influence as it implements Ramsar decisions. 5.1.1 Input legitimacy Focusing first upon DEFRA’s internal modalities105 as revealed by the research, its approach to consultation could be significant for delivering input legitimacy via a transparent, participatory process. The National Ramsar Steering Committee secures participation in formulating a State position for cross-government officials and devolved governments. Further, previous meetings of the Ramsar Forum ought to have promoted Government transparency amongst civil society and academics, and to have given NGOs a participatory role as well. However, these were not employed for COP11 and, whilst the situation dictated such temporary measures, informal consultation via conference calls with selected wetland NGOs risked undue influence and private lobbying from a closed group, thus potentially undermining a sense of a transparent participatory process.106 That said, at least there was some consultation with non-governmental bodies. Nevertheless, repetition of this form of consultation needs to be avoided. Thus, with the Forum noted to be in decline, it is encouraging to note that, since conducting the interviews, a new initiative has been pursued in which DEFRA has compiled an email circulation list of stakeholders and other interested parties in biodiversity issues, all of whom are invited to various consultation meetings for the biodiversity conventions. In March 2015, these parties were invited to Barnes Wetland Centre to discuss the agenda items for Ramsar COP12. The new mechanism seems open to anyone with an interest and it appears easy to approach DEFRA to become a member of this circulation list. This was something that was not so easy for the Ramsar Forum, which operated on an invite only basis and was in practice limited to the groups listed in its Terms of Reference.107 If successful, this new body could prove to be an excellent vehicle for delivering transparency and wider participation, reinforcing the deliberative and procedural aspects of input legitimacy of the Ramsar COP process, as well as the authority of DEFRA to implement decisions. Ramsar’s COP process can also be assessed through an input legitimacy optic. In Part 4, the dominance of consensus decision-making was highlighted. Such forms of decision-making should secure due deliberation by ensuring an equal voice for all participants, and thus enhance input legitimacy. However, in recent years, controversies have occurred about the meaning of consensus and consensus-decision making, particularly where a small minority of States have objected to a course of action.108 As the research presented herein reveals, Ramsar is not immune to controversy surrounding its rules for adopting decisions, as exemplified in the ‘show of hands’ initiative at COP11 concerning Secretariat hosting. This event is concerning given it threatens many of the aspects of input legitimacy; suggesting the regime does not operate according to transparent predictable and stable administrative rules nor do its processes engage all interested parties. If input legitimacy is undermined, so too is one of the forces driving decision influence. 5.1.2 Output legitimacy DEFRA’s deliberate selection of delegates with suitable experience and expertise could also connect to output legitimacy. Experienced delegates encourage adoption of positions and collective agreement of decisions that are properly rooted in science, are rational, insulated from politics, and account for known challenges for wetland conservation thereby yielding better outcomes.109 5.2 Rational Persuasion It is worth recalling that rational persuasion is when an actor regards a direction as convincing in some way. This may be because it is interpreted as being in the interest of a State or the individual whose acts count as those of the State. Alternatively, it may be convincing according to science, the merits of a well-reasoned judgment, or a sense of justice. Because of this, three crucial stages need to be considered: (i) identifying key actors who need to be rationally persuaded; (ii) identifying the various grounds upon which a proposal might then be viewed as rationally determined by those actors; and (iii) having identified which grounds are likely to rationally persuade key actors, ensuring that the decision issued by the COP reflects them effectively. Taking each in turn, as to (i), classically MEAs establish obligations and issue directions that depend upon national implementation to have effect. Therefore, the obvious group that needs to be rationally persuaded by a decision is the lead government agency for Ramsar. In the UK, this meant DEFRA (and more immediately, the delegates representing DEFRA). Post-COP11, DEFRA was relied upon to begin the process of adjusting national approaches and regulation in accordance with the resolutions. However, as indicated earlier, the management of wetlands cuts across multiple aspects of national policy, and in seeking to make adjustments DEFRA is itself reliant upon the cooperation of other government departments and devolved administrations to approve regulations and enforce them. According to the theory, for them to adjust their behaviour, these actors must ideally also be rationally persuaded by DEFRA’s instructions. The data collected relating to the modalities on consultation highlights that the introduction of the National Ramsar Steering Committee has helped to identify in advance the relevant actors across central and devolved governments. In contrast the temporary measures used in the run up to COP11 may not have captured all of the non-governmental actors. In future, the new biodiversity liaison initiative (mentioned in Section 5.1) offers a mechanism for actors to identify themselves with, and declare an interest to, DEFRA. This is supplemented by the experience of DEFRA staff which helps to prioritise actors within government and key NGOs for consultation. As to (ii), having contacted a number of appropriate actors in the run-up to COP11, DEFRA employed modalities that should have released and collated a great volume of information defining the interests of wetland stakeholders. In this regard, the data once again indicated the importance of experience. For instance, freedom was given to individuals to produce the first draft responses to the proposed COP11 agenda items. In this process, one respondent described how their own knowledge of previous standing committee work, as well as past objectives and ‘red lines’, gave a good indication of the likely discussions and concerns at the COP. This then fed into producing practicable proposals for circulation to national actors. Thereafter, recourse to consultation with the National Ramsar Steering Committee and key NGO actors, offered the potential for the DEFRA delegation to have an excellent understanding of the form of outcome that was likely to appeal to all sectorial interests. Interestingly, the data indicated that much of that consultation was facilitated by electronic communications, and this practice ought to be considered by other States as a cost effective way to capture viewpoints. However, as a warning, that same mode has costs linked to the fact that communication is far more effective when parties are physically present with each other; otherwise body language might be missed, or the intensity of engagement diminished.110 It seems, however, that having reasonable awareness of a large range of actors’ concerns should be preferable to awareness of fewer interests at a more nuanced level. Turning to (iii) and the participation phase of internal modalities, once again the data consistently indicated that delegate experience is key to translating the identified bases of rational decisions into the products of COPs. The modalities for the UK delegation on delegate selection indicated a valuing of quality of delegates (particularly linked to experience of Ramsar meetings) over quantity. Such experience generated influence within the regime, as well as securing greater effectiveness in terms of disseminating State positions at the plenary session—indeed, this was confirmed in the data with respect to modalities for participation at the COP where experience enhanced the ability to identify key delegates in whom it was worth investing time with a view to securing the UK’s preferred positions. Securing such experience required a commitment to staff retention and stability (at least to the extent of one delegate having attended a series of previous plenary sessions), and investment in facilitating practical training derived from attending sessions (not necessarily the plenary, but preferably with a mentor) rather than from classroom-based instruction. Pausing to look beyond the UK’s internal modalities to Ramsar contracting parties more generally, if the theory is correct then the recommendations for securing rationally persuasive decisions are that States ought to plan for, and be supported in developing, delegates with experience of international environmental negotiations, and ideally specifically for Ramsar. Although there was some support expressed by the UK delegates for international training workshops to this end, the preferred way to do this was suggested to be shadowing colleagues before being left alone to represent a State. It might, however, prove difficult for States with limited budgets to afford sending multiple personnel to a meeting. As a result, regime funds or international aid would need to be released to support such measures, rather than merely attendance by a single delegate. The potential positive impact upon decision influence would more than justify this. Alternatively, delegates need to have easy access to others who can fill gaps in knowledge and experience. This might be through engaging NGO experts to join delegations, or accepting assistance from other States in the form of their nationals joining delegations. These solutions, though, pose problems as NGOs ultimately answer to different constituencies compared to the many democratically elected States, whilst there may be concerns about the independence of other nationals joining delegations. Less problematical is making use of negotiating blocs, like that operated by the EU Member States, or through proper support from advisors back in the State’s national offices. The justification is obvious: suitably experienced and supported delegates are believed to be better able to assess in advance, and challenge during COP negotiations, the legal, diplomatic and scientific merits of a decision. An adequately staffed and supported delegation with experience in multi-lateral negotiations is also best equipped to insert the State’s own rationally persuasive stance into the final product. The data suggested particular strengths for the UK in this regard; regime, policy, legal, scientific, vertical and horizontal experience was all present within the delegation to COP11. There was also no suggestion that the UK had insufficient numbers to attend important contact groups at the COP. This may not be the case for all countries participating in Ramsar COPs, but the pursuit of rationally persuasive decisions re-emphasises how important succession planning might be for future UK engagement with Ramsar. The interviews, however, revealed concerns about succession planning, as well as cutbacks in departmental budgets that again hinted at increasing challenges in this regard. Further, coalitions were significant for the UK delegation in the context of COP11. Acting as a coalition clearly offered the UK the chance to have its positions represented and amplified at the COP. Different States enjoyed different diplomatic relationships, and this could be used to reach further than a State acting on its own. The coalition also bolstered the effective size of the delegation. However, this coalition was founded upon membership of the EU, and, as mentioned already, following ‘Brexit’ this is not projected as being automatically available in the future. This possible loss of collective bargaining power, and potential impact upon the UK’s internal modalities presents itself as a key area of future concern for decisions that might be rationally persuasive within the UK. 6. CONCLUSION This article has explained that decisions taken by the COP to Ramsar, in common with many other MEAs, are crucial for the effective operation of the regime. These decisions, therefore, need to influence the behaviour of the States Parties to Ramsar. Internal modalities for the preparation of delegations, and the participation of those delegations at COPs, can be linked to the characteristics of the decision and decision-making process that according to theory affect the likelihood of those crucial decisions influencing State behaviour. This is because the normative legitimacy of the decision-making process, and the degree to which a decision is rationally persuasive to a State, might be enhanced or undermined by decisions made by a State when implementing its internal modalities surrounding delegations to the Ramsar COP. This position was illustrated by recourse to a grounded case study on the UK delegation to COP11. This analysis of the data acquired on the UK government’s internal modalities for delegate preparation and participation at COP11 suggests that, if we accept Bodansky’s assessment of the literature on decision influence as being accurate, the UK had adopted practices that enhance the likelihood that decisions adopted at that session (and indeed future COPs if replicated) will be viewed as being legitimate and rationally persuasive by the UK. In theory this should, in turn, increase the chances of those decisions having the desired impact upon the UK’s actions and thus the wise use and conservation of wetland areas. Naturally, it has only been possible to draw theoretical conclusions (thus talk in terms of likelihood) since the empirical research was designed to establish the content of the UK’s internal modalities, and not the degree to which the UK did comply with the decisions reached. The case study has also served to provide examples of practice that other States may feel would be practicable and represent a desirable development for themselves. In turn, if the theory proposed in this paper is correct, many of these adjustments could ultimately enhance the persuasiveness of COP decisions within those States. Delegate experience and numerical strength, wide and transparent consultation, use of modern communication, delegation briefing papers that evolve, and resort to negotiation blocs, have all been highlighted as of potential importance, and this could be used to inform international aid and capacity building initiatives. However, risks within the UK’s internal modalities were also identified. Some have already been addressed, such as reforms for consulting externally with NGO’s and other private stakeholders. Nevertheless, while numerical strength, substantive expertise and forensic experience had all been secured across the appointment of delegates and used to great effect in the lead-up to, and at, the COP, concerns became evident about future capacity to have access to these qualities. This was because of limited funding and succession planning, as well as the imminent departure of the UK from the EU. When linked to the theory advanced in this paper concerning persuasiveness of decisions, this lends weight to calls for urgent action to retain and transfer institutional knowledge and experience. Acknowledgement The author wishes to thank Michael Bowman, Marko Milanovic, Hemi Mistry, and Sandesh Sivakumaran for comments they provided on earlier drafts. The author alone remains responsible for any errors or omissions the article may contain. Footnotes 1 For further discussion on obligation development, see Malgosia Fitzmaurice, ‘Law-Making and International Environmental Law: The Legal Character of Decisions of the Conference of the Parties’ in Rain Liivoja and Jarna Petman (eds), International Law-Making: Essays in Honour of Jan Klabbers (Routledge 2014) 190, 193–196. 2 2 February 1971, 996 UNTS 245. 3 Michael Bowman, ‘The Ramsar Convention on Wetlands: Has it Made a Difference’ (2002) Ybk Intl Co-operation on Environment and Development 61, 61. 4 For details, see <http://www.ramsar.org/country-profiles> accessed 5 December 2018. 5 Ramsar (n 2) art 2(2). 6 ibid art 3(1). 7 Resolution IX.1, Annex A, [22]. All decisions taken by the Ramsar COP can be accessed via https://www.ramsar.org within the ‘Documents’ section and are found via Document Type>Convention Documents>Resolutions and recommendations accessed 13 February 2019. 8 Ramsar (n 2) art 3(1). 9 For an in-depth account, see Michael Bowman, Peter Davies and Catherine Redgwell, Lyster’s International Wildlife Law (2nd edn, CUP 2010) 414–419 (hereafter ‘Lyster’). 10 Ramsar (n 2) art 3(2). 11 Recommendation 4.8. 12 Ramsar (n 2) art 4(3). 13 In fact, it was not until 1982 that a protocol was adopted to enable amendment of the treaty. 14 Edward Goodwin, ‘Delegate Preparation and Participation in Conferences of the Parties to Environmental Treaties’ in Malgosia Fitzmaurice and Duncan French (eds), International Environmental Law and Governance (BRILL | Nijhoff 2015) 51, 60. 15 Simon Lyster famously called agreements that do not hold such sessions ‘sleeping treaties’; Lyster (n 9) 533. 16 See further Robin Churchill and Geir Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’ (2000) 94 AJIL 623, 628. 17 Ramsar (n 2) art 8(1) and Resolution IX.10. 18 For greater detail on each category, see Goodwin (n 14) 62–64; see also Louise Camenzuli, ‘The Development of International Environmental Law at the Multilateral Environmental Agreements’ Conference of the Parties and its Validity’ (2007), available <http://cmsdata.iucn.org/downloads/cel10_camenzuli.pdf> accessed 5 December 2018. 19 The numerous guides and 21 handbooks can be accessed at the same section of the Ramsar website as decisions (see n 7), and are found via Document Type>Resources or Document Type>Publications accessed 13 February 2019. 20 As adopted under Recommendation 4.10 (Annex), 6, and supplemented by Resolution 5.6 (Introduction). 21 ibid. 22 Ramsar Draft Resolution (DR) XI/16–18. Draft resolutions can be accessed at the same section of the Ramsar website as decisions (see n 7), and are found via Document Type>Meeting Papers>COP Papers accessed 13 February 2019. 23 Ramsar DR XI/1–2. 24 Ramsar DR XI/4. 25 Ramsar DR XI/8. 26 Ramsar DR XI/14. 27 Ramsar DR XI/11. 28 For example, those on pesticide usage in rice paddies; Ramsar DR XI/15. 29 See for example, Churchill and Ulfstein (n 16), Jutta Brunnée, ‘COPing with Consent: Law-Making Under Multilateral Environmental Agreements’ (2002) 15 Leiden J Int’l L 1; Malgosia Fitzmaurice, ‘Consent to be Bound – Anything New Under the Sun?’ (2005) 74 Nordic J Intl L483; Camenzuli (n 18); Annecoos Wiersma ‘The New International Law Makers? Conferences of the Parties to Multilateral Environmental Agreements” (2009) 31 Michigan J Intl L 231; Fitzmaurice ‘Law-Making and International Environmental Law’ (n 1). 30 Since such changes require subsequent ratification by the parties it is difficult to view the COP as more than a forum for negotiations rather than as making binding law at such moments (although the MARPOL 73/76 convention may provide an exception to this), see further Fitzmaurice ‘Law-Making and International Environmental Law’ (n 1) 193-195. 31 Such work may be closer to law-making and thus deserve greater caution; ibid 196. 32 Peter Davies, ‘Non-Compliance: A Pivotal or Secondary Function of COP Governance?’ in Malgosia Fitzmaurice and Duncan French (eds), International Environmental Law and Governance (BRILL | Nijhoff 2015) 87, 95–96. 33 Goodwin (n 14) 58–61. 34 Ethics approval was obtained under University of Nottingham procedures. For a guide to semi-structured elite interviews, see LA Dexter, Elite and Specialized Interviewing (ECPR 2006). 35 There were broadly three themes to the questions: delegate selection, preparation and participation. 36 Beth Leech, ‘Asking Questions: Techniques for Semi-Structured Interviews’ (2002) 45 Political Science and Politics 665, 665. 37 Fitzmaurice ‘Law-Making and International Environmental Law’ (n 1) 208–10. 38 ibid 210. 39 Focusing solely upon compliance with an obligation ignores other positive achievements of a regime such as catalysing progress within a State that has taken it meaningfully towards (albeit just short of) meeting an obligation, and it presupposes that compliance with a hard law obligation will be effective in reversing an environmental threat. A focus upon influence allows for the former, whilst decisions issued by COPs are commonly about promoting best practice against an environmental problem. Nevertheless, since these compliance theories include the reasons why States act in a particular way, they remain relevant, as indeed appears to be Fitzmaurice’s assumption when citing them to explain compliance with COP decisions; ibid. 40 Ronald Mitchell, ‘Compliance Theory’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2007) 893, 901. 41 ibid 901–02. 42 Abram Chayes, ‘Compliance without Enforcement’ (1997) 91 ASIL Proceedings 53, 55. 43 Mitchell (n 40) 902–03. 44 Daniel Bodansky, ‘Legitimacy in International Law and International Relations’ in Jeffrey Dunoff and Mark Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (CUP 2013) 321, 326. 45 Daniel Bodansky, ‘Legitimacy’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2007) 706, 707. 46 ibid 707. 47 Vaughan Lowe, International Law (OUP 2007) 19–21. 48 Bodansky (n 44). 49 Bodansky (n 45) 707–08. 50 Bodansky (n 44) 322. Descriptive legitimacy is an alternative form, however few academics have engaged in the empirical research needed to consider it, Tom Tyler being a notable exception; see Tom Tyler, Why People Obey the Law (Princeton 2006). 51 Bodansky (n 44) 327. 52 Jutta Brunnée and Stephen Toope, Legality and Legitimacy in International Law (CUP 2010). Thomas Franck was similarly interested in theories of legal obligation and he sought an understanding of the formal characteristics of norms that result in ‘compliance pull’; see Thomas Franck, The Power of Legitimacy Among Nations (OUP 1990). 53 Brunnée and Toope (n 52) 55. 54 ibid. 55 ibid 53–54. 56 ibid 26. The eight criteria of legality are taken from Lon Fuller’s theory concerning the internal morality of law, namely: (i) generality, (ii) promulgation, (iii) prospective effect, (iv) clarity, (v) consistency, (vi) realistic demands, (vii) stability and (viii) congruency between the rules as promulgated and as administered; Lon Fuller, The Morality of Law (Yale UP 1969) 39. 57 Brunnée and Toope (n 52) 356. 58 ibid Chapter 2. 59 Bodansky (n 44) 324. 60 ibid 329–32. 61 Daniel Esty, ‘Good Governance at the Supernational Scale: Globalizing Administrative Law’ (2006) 115 Yale LJ 1490, 1517 62 ibid. 63 ibid 1507–08; Bodansky (n 44) 329–30. 64 Esty (n 61) 1516. 65 ibid 1520. Esty describes these as order-based, systemic, procedural and deliberative legitimacy; and see also, for wider recognition of these elements, Bodansky (n 44) 329–31. 66 Ramsar Rules of Procedure (2015), Rule 16, available at <http://www.ramsar.org/document/ramsar-rules-of-procedure-cop12> accessed 5 December 2018. 67 ibid Rule 18. For discussion of the nature of credentials compared to full powers, see Goodwin (n 14) 68–73. 68 For information on the sizes of delegations for all Ramsar contracting parties up to COP11, see Goodwin (n 14) 76–78. 69 For example, States such as China, Malaysia, the Republic of Korea and the USA have, in the past, sent delegations of 10 or more delegates, even if they are not hosting the COP. 70 For further examples, see Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 UNTS 151, art 9(3). Non-environmental examples include the Convention of the World Meteorological Organization, 11 October 1947, 77 UNTS 143, art 7(b) and the Constitution of the International Labour Organization, art 3(1) available at <http://ilo.org/dyn/normlex/en/f?p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2453907:NO> accessed 5 December 2018. 71 Ramsar (n 2) art 7(1). The World Heritage Convention, which contains a similar clause (n 70), was, like Ramsar, negotiated with the involvement of IUCN. Many of the remaining leading MEAs have been negotiated with the support of UNEP. The inclusion and exclusion of such provisions may therefore be linked to the documentary precedents used as starting points for negotiations; see Churchill and Ulfstein (n 16) 630. 72 For information on the sizes of delegations for all Ramsar contracting parties, see Goodwin (n 14) 78–79. 74 Indirectly relevant insights can be extracted from the literature about non-environmental treaty regimes and negotiations, such as the UN General Assembly or trade negotiations; see for example, John Hadwin and Johan Kaufmann, How United Nations Decisions are Made (Sythoff 1960) 28–29; Conor Cruise O’Brien, To Katanga and Back (Hutchinson 1962) 28; Emily Jones, Carolyn Deere-Birkbeck and Ngaire Woods, Manoeuvring at the Margins: Constraints Faced by Small States in International Trade Negotiations (Commonwealth Secretariat 2010) 15–24. 75 A Site of Special Scientific Interest is a designation given to a protected area in England, Wales and Scotland with an exclusive nature conservation focus. They are used to implement international obligations, including those under Ramsar; see further Christopher Rodgers, The Law of Nature Conservation (OUP 2013) 68–99. 76 This sentiment was repeated in interviews with NGOs, for example on working with experienced delegates: ‘we know [them], [they] know us and we know [they] understand what we’re talking about. That doesn’t mean we wouldn’t talk to other people as well, including new faces, but they may be more constrained on what they can pick up and do…’. 77 Government and NGO interviewees highlighted these workshops; background information available at <http://www.unep-aewa.org/en/news/african-preparatory-negotiation-workshop-empowers-cms-and-aewa-negotiators> accessed 4 March 2018. NGO interviews also highlighted similar training by World Wetland Network for civil society on effective COP engagement. 78 Daniel Bodansky, The Art and Craft of International Environmental Law (Harvard UP 2010) 112. 79 Brunnée and Toope (n 52) 10–11. 80 Rio Declaration on Environment and Development, 31 ILM 874 (1992). 81 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1999) 38 ILM 517. 82 Second Meeting of the Parties, Almaty, Kazakhstan, Decision II/4, [28]. 83 ibid [30]. 84 Rules of Procedure (2005) Ramsar COP10 DOC.2 Rev.1, Rule 5 85 ibid, Rule 10. 86 Establishing national committees has been encouraged under Ramsar Policy since 1993; Recommendation 5.7. 87 Natura 2000 and Ramsar Steering Committee Terms of Reference, available <http://webarchive.nationalarchives.gov.uk/20130402151656/http://archive.defra.gov.uk/rural/protected/internationally-designated-sites/n2kr-sc-tor-1011.pdf > accessed 5 December 2018. 88 Natura 2000 and Ramsar Forum Terms of Reference, available <http://webarchive.nationalarchives.gov.uk/20130402151656/http://archive.defra.gov.uk/rural/protected/internationally-designated-sites/n2krf-tor-0810.pdf > accessed 5 December 2018. 89 See section 2 on Ramsar listing. 90 Marise Cremona, ‘Member States as Trustees of the Union Interest: Participating in International Agreements on Behalf of the European Union’ in Anthony Arnull and others (eds), Constitutional Order of States: Essays in EU Law in Honour of Alan Dashwood (Hart 2011) 435. 91 Jacob Werksman, ‘Procedural and Institutional Aspects of the Emerging Climate Change Regime: Improvised Procedures and Impoverished Rules?’, Workshop Paper (23 November 1999) <http://www.ucl.ac.uk/cserge/Werksman.pdf> accessed 5 December 2018. 92 Richard Steinberg, ‘In the Shadow of the Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO’ (2002) 56(2) International Organization 339. 93 Ramsar, art 7(2) cf Ramsar Rules of Procedure (n 66) Rule 40. While resort to voting is rare under Ramsar, there are notable exceptions within international environmental law, such as the Convention on International Trade in Endangered Species of Wild Fauna and Fauna (3 March 1973, 993 UNTS 243), where additions to and amendments of its appendices are regularly made following a vote. 94 See in the context of inexperienced NGOs being unfamiliar with ways to influence the COP process, Elisabeth Corell, ‘Non-State Actor Influence in the Negotiations of the Convention to Combat Desertification’ (1999) 4 Int’l Negotiation 197, 209–210, 213. 95 See Robert Keohane, Political Influence in the General Assembly (International Conciliation No. 557) (Carnegie Endowment for International Peace 1966) 37–38; Joyeeta Gupta and Lasse Ringius, ‘The EU’s Climate Leadership: Reconciling Ambition and Reality’ (2001) 1 International Environmental Agreements: Politics, Law and Economics 281, 282. 96 Corell (n 94) 199. 97 Consensus decision-making is considered further later in this article. 98 Such as the need to improve synergies with other MEAs, and a perceived increase in the political and international visibility of Ramsar; Earth Negotiations Bulletin, Summary of the 11th Conference of the Parties to the Ramsar Convention on Wetlands (IISD 2012), 4 <http://www.iisd.ca/download/pdf/enb1739e.pdf> accessed 5 December 2018. 99 Not least because the political visibility issue could easily be resolved by including a high-level ministerial segment; ibid 15. 100 ibid 4. The two-thirds majority is required by art 8(1). 101 The article examines how practice might lead to more persuasive decisions since the empirical research was designed to establish the content of the UK’s internal modalities, and not the degree to which the UK did comply with the decisions reached. 102 As opposed to normative legitimacy of a legal system; see section 3.2. 103 See also Esty (n 61) 1517. 104 See also Bodansky (n 44) 329–32. 105 As a short aside, it is worth noting that DEFRA’s own normative input legitimacy receives a significant boost by being nested within a democratic political system; Esty (n 61) 1507, 1515. 106 Elizabeth Kirk, ‘The Role of Non-State Actors in Treaty Regimes for the Protection of Marine Biodiversity’ in Michael Bowman, Peter Davies and Edward Goodwin (eds), Research Handbook on Biodiversity and Law (Edward Elgar 2016) 95, 97. 107 See (n 88). 108 The best example of this in international environmental law of recent years comes from the climate change regime; see for an excellent critique Dapo Akande, ‘What is the Meaning of “Consensus” in International Decision Making?’ EJIL: Talk! (8 April 2013); see also, Antto Vihma, ‘Climate of Consensus: Managing Decision Making in the UN Climate Change Negotiations’ (2015) 24 RECIEL 58. 109 Esty (n 61) 1517. 110 The diminished quality of communication in the absence of physical interaction is a recognized challenge for online dispute resolution; Joseph Goodman, ‘The Pros and Cons of Online Dispute Resolution: An Assessment of Cyber-Mediation Websites’ (2003) 4 Duke L Technol Rev 1, 10–13. 73 The host nation is excluded from average calculations since the records reveal exceptional numbers of delegates that are out of the ordinary for the host State’s usual practice, thus skewing the average; for greater detail see Goodwin (n 14) 77. © The Author(s) 2019. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - State Delegations and the Influence of COP Decisions
JF - Journal of Environmental Law
DO - 10.1093/jel/eqz007
DA - 2019-07-01
UR - https://www.deepdyve.com/lp/oxford-university-press/state-delegations-and-the-influence-of-cop-decisions-g4jd4WnO0v
SP - 235
VL - 31
IS - 2
DP - DeepDyve
ER -