The Case of Transboundary Wetlands Under the Ramsar Convention: Keep the Lawyers Out!

Abstract

How does international environmental law work in practice, not in ICJ cases or on any other international level, but at grass roots level? In the domain of international environmental law there exists a complex pluralistic constellation of principles, rules, and regulations originating from various government institutions. Taking transboundary wetlands, as protected by the Ramsar Convention on Wetlands of International Importance, as an example, this study shows that the legal situation is indeed extremely complex. This is not so much the case at the international and the regional levels, where environmental conventions and all the soft law that goes with these conventions are governed by similar principles, such as integrated river basin management, transboundary co-operation, sustainable use. The problems clearly lie at the national level where legislation exists on water management, nature conservation, environmental protection, mining, fisheries, agriculture, tourism, etc., at various levels of government, on both sides of the national border. Two detailed case studies show how all actors involved, not only public authorities, but interest groups and landowners as well, deal with international environmental law, i.e., the Ramsar Convention, in such a complex legal context.

Following conclusions were drawn from these cases. The first conclusion is that the Ramsar Convention itself plays a limited role. The main concepts of the Convention are well known to the stakeholders and they play an important role in the stakeholder process as overarching common concepts that everyone agrees to. However, on a more detailed level, i.e., more specific provisions, or soft law documents connected to the Convention, such as the Ramsar Handbooks, the Convention's role is extremely limited. In the Scheldt estuary case, the Convention hardly plays any role at all, simply because its obligations have been elaborated in EU law in much greater detail and in a legally more binding way (i.e., the Wild Birds and Habitats Directives). Even the fact that parts of the site on Belgian territory have been placed on the Ramsar's Montreux record of degraded wetlands does not seem to bother many of the people involved. This is different in the Orange River Mouth case, where the fact that part of this site has been listed on the Montreux record is the main impetus to deal with the site. But here as well, the Convention's specific obligations are not a major factor at grassroots level.

The second conclusion. The Ramsar Convention requires an integrated management for protected wetlands, but is this at all possible in such a complex legal situation? Both cases clearly show that all people involved in the area, both decision-makers and third-party stakeholders from both countries, more or less withdraw from the law. They do not want to bother with the legal details, only with some vague broad notions they have from the Ramsar Convention or other relevant legal documents, such as the concept of wise use. "Keep the lawyers out!" is their message to people, such as me, who raise legal questions during the process of co-operative governance. They realize that, once you get into the details of all of the relevant law that applies to the area, it will be impossible to reach an agreement on the management of the site. Abstraction from the law enables all actors involved to freely discuss their views on the conservation and management of the site.

This leads to the third conclusion. Multilevel, co-operative governance is the key to dealing with complex situations with many stakeholders that have conflicting interests. In both cases, the presence of an informal committee in which all relevant stakeholders are represented has been crucial in the decision-making process with regard to the management of the Ramsar site. Conflicts of interests have been overcome in these bodies, paving the way towards long-term integrated and sustainable management of the site, avoiding legal conflicts within or between the two states involved. In the two cases studied here, even a boundary dispute between Namibia and South Africa, and a centuries-long conflict on the accessibility of an inland port between Belgium and the Netherlands, could not impede the success of the stakeholder process. However, such a stakeholder process is time consuming and slow, and should be carefully led, keeping a close eye on all sensitive positions.

The fourth conclusion is that the success of the stakeholder process does not guarantee a successful ending. After the stakeholders have reached an agreement, the law takes over again. Government institutions at all levels in both countries have the difficult task to translate the outcome of the co-operative governance process into a large number of legal decisions, based upon a wide variety of statutes and regulations in the various legal domains. This is not only a difficult phase of the decision-making process, but also one in which the good results of the stakeholder process can be easily destroyed. The legal complexity is sometimes used by government officials or representatives who were not involved in the stakeholder process or who changed their opinion on the outcome of the process, to divert from the outcome. Therefore, it is important that the co-operative governance process continues during the translation of the agreements into legal decisions, and that all relevant government institutions are actually involved in the process and committed to its outcome.

Keywords: wetlands, transboundary protected areas, transfrontier conservation areas, Natura 2000, river basin management