Environmental Law

07/08/2016

The evolving potential of the (non-) compliance mechanisms of the Bern Convention on European Wildlife Conservation

By Jennifer Dubrulle

1. Effectiveness of non-compliance mechanisms: EU nature protection laws topdog – Bern Convention underdog?

In discussions on the protection of wild animals in Europe the Bern Convention’s^[1] (non-) compliance mechanisms^[2] are easily overlooked and overshadowed by those of the European Union. We all know, right, that the EU is praised for its elevated (non-) compliance mechanisms.^[3]

The enforcement powers of the Standing Committee, the body entrusted with the task of monitoring the application of the Bern Convention, exercises its power in an innovate way, in particular through the case-file procedure. In the European Union, the European Commission takes up a similar role via the infringement procedure.^[4]

The enforcement powers of the Standing Committee, if one looks at the final result that can be obtained, are rather underwhelming. The Standing Committee cannot do much more than issue, as the appellation suggests, non-binding recommendations, only able to facilitate, rather than coerce Member States into compliance. In daily practice, however, the procedure stands out in several respects. These recommendations are more flexible than judgments are, not focusing on assessing whether legal provisions were violated, but formulating practical, tailor-made measures to address specific conservation concerns on site. In stark contrast to the EU,^[5] the complainant is allowed a generous degree of participation throughout the procedure.^[6] The Standing Committee treats the complainant/NGO and the Contracting Party on a more equal footing: both parties are encouraged to respond to each other’s arguments prior to the Standing Committee’s decision whether to take further measures or not. The procedure is also transparent, key documents of the non-compliance procedure are publicly available.^[7] Another advantage is that the Standing Committee has extensive powers of investigation.^[8]

2. Two protection pillars of which possible violation triggers non-compliance mechanisms

International, European and national wildlife laws’ basic structure is identical in the sense that these laws contain species protection provisions, protecting the animal wherever it goes (e.g. hunting prohibitions), and habitat protection provisions, protecting the areas where these animals live. The Bern Convention is not much different on this point. Once these key provisions^[9] of the Bern Convention are (presumed to be) violated non-compliance mechanisms become increasingly relevant, unless a contracting party can successfully rely on an exception ground.^[10]

3. The Bern Convention’s non-compliance mechanisms

The compliance tools in the Bern Convention are what one expects to find: the Contracting Parties are obliged to report on their compliance with the Convention. The Convention also provides for a, commonly encountered in MEAs, dispute settlement procedure, allowing contracting parties to designate an arbitrator to settle disputes that arise between them.^[11] Rarely applied in practice, Contracting Parties are hesitant to bring each other before an arbitrator.

Interestingly, the most significant compliance tools are not explicitly provided for in the Convention.^[12] There is no explicit provision for a compliance-focused procedure within the Bern Convention. The Contracting Parties, through a bold interpretation of existing Convention provisions,^[13] determined that these provisions provided a sufficient basis for the development of the case-file procedure.^[14]

3.1 Case-file procedure

The whole idea behind the case-file procedure is to encourage Contracting Parties to address concrete conservation problems at particular sites and the means by which to do so. Any party may refer a complaint to the Standing Committee in respect of a Contracting Party’s failure to comply with its obligations under the Bern Convention. The Secretariat, after seeking further information from the parties concerned, decides whether there are grounds for placing the complaint as a ‘file’ on the agenda of the next meeting of the Standing Committee. A threshold to determine this is to decide whether the complaint is sufficiently serious to merit international attention, considering procedures that may already be pending at the (inter) national level as well as the seriousness of the breach. If the Standing Committee chooses to open a file it may adopt specific recommendations designed to bring the state into compliance with its obligations or authorize an on-the-spot appraisal to seek further information. The Standing Committee has a broad mandate to make recommendations to individual parties and these recommendations may be site or activity specific, such as the removal of buildings on a nesting beach or rerouting a road likely to impact on a critical habitat.^[15]

The Balkan Lynx Case-file demonstrates how the non-binding case-file procedure succeeds in having significant impacts in practice. The Balkan lynx, the smallest and most threatened native Eurasian lynx subpopulation,^[16] consists of about 27-54 independent individuals, mostly distributed along Albania and Macedonia. The only reproductive area left is in Macedonia, in the Mavrovo National Park.  An NGO, Eco-vest, filed a complaint in 2013 because of the government’s plan to build 22 hydropower plants on the territory of the park, 2 of which are large-scale.^[17] One of the large-scale plants, Boskov Most Hydro Power Plant (HPP), would be built in prime lynx habitat.^[18] The complainant argued that the environmental assessment was insufficient to judge the impact of the project on in particular the lynx.^[19] 2011^[20] and 2012^[21] Bern Convention recommendations already requested Macedonia to assess the impacts of the dams on the lynx population and take measures to maintain the ecological characteristics of the site, further strengthening the argument. The lynx is protected under Appendix III of the Convention, meaning that killing is not prohibited but that the species – at least – must be protected from danger. As the Balkan lynx is, in accordance with the IUCN red list categorization, critically endangered the project is in clear breach of the Bern Convention’s species protection provisions. The Standing Committee found it unwise to put any additional stress on the lynx and issued a tailor-made recommendation requiring that a comprehensive environmental assessment would be carried out before the project could go ahead; that in application of the precautionary principle all construction projects had to be suspended as long as the overall impact had not been fully assessed and that the World Bank (WB) and the European Bank for Reconstruction and Development (EBRD) should immediately suspend financing.^[22] As a result, the EBRD^[23] as well as the WB^[24] suspended financing.

Over the years, the Standing Committee identified a shortcoming in the case-file procedure: it can only be started by a complaint that presumes that a Contracting Party failed to comply with Convention provisions. Because failing to honor international obligations is a serious matter, most governments refuse to admit they breached international law, making it more difficult to find effective solutions. Over the years, the Standing Committee felt increasingly reluctant to open new case-files, trying to avoid the common perception that opening a case-file means there is a presumption of breach. To circumvent this perception the Standing Committee sometimes decided to not open a case-file but investigate the matter more informally, focusing on the adoption of recommendations to improve wildlife protection in practice.^[25] In 2015, so this procedure is fresh meat, the mediation procedure was formalized under the Bern Convention.

3.2. Mediation procedure

The Standing Committee formalized the mediation procedure to avoid ‘lost opportunities’, that is cases where Contracting Parties did not necessarily breach the Convention, but where intervention would be useful to achieve the Convention’s aims. The mediation procedure is meant to foster dialogue between the complainant and the government and find practical solutions, without blaming a Contracting Party.^[26]

The mediation procedure is kicked off, by a Standing Committee decision, mostly after submission of a complaint that did not have enough gravitas to justify the opening of a case-file. The mediation procedure is subject to agreement of the Contracting Party involved. An expert is appointed, a so-called ‘honest broker’ who acts as a mediator.^[27] All parties join a mediation visit and in the best case scenario a mediation agreement is drafted. The first mediation file, opened in 2015, ended up in a mediation agreement between a complaining Lithuanian NGO, Association Rudamina Community, which argued that the building of an overhead powerline in Lithuania would affect wild species such as high-flying birds and the European pond turtle, and the Lithuanian government.^[28]

4. Conclusion

1. Not everything is what it seems

There are arguments to challenge the perception that binding instruments are preferable over non-binding instruments. Although the Bern Convention recommendations are not binding, these are flexible in their application, and, strengthened by the Standing Committee’s ability to gather information from the site in question, allow the Standing Committee to make practical, site-specific recommendations, rather than simply relying on desk studies/reports.

2.  Investors do not want to be associated with breaches of International Environmental Law

All investors in the discussed cases took international environmental law seriously. Both the WB and the EBRD backed out of the Macedonian HPP because these large-scale dams violated the Bern Convention. Large-scale projects are often at least co-financed by institutions that care about their reputation and are not insensitive, not even to, non-binding recommendations.

In short, although the Bern Convention’s added value is most apparent beyond the EU, it arguably plays, because of its practical approach, a distinct role within EU Member States as well.

5. Outstanding questions raised at the conference^[29]

–      Are these two cases really indicative of the power of non-binding instruments or just outliners? A comprehensive answer to this question requires an investigation on what happened/is happening on the ground in the, as of 1 February 2016, 161 Bern Convention (possible) case-files;^[30]

–      How do the EU and Bern Convention’s non-compliance mechanisms interrelate? My intuition is that the Bern Convention offers adequate relief in cases where a no-nonsense practical solution (answer to the question: ‘what do we actually have to do to improve conservation?’) to address conservation concerns on the ground and the means by which they might do so is sought. Member States that are not tempted to act on the basis of a, non-binding, reminder only might be in need of the European Union’s more coercive non-compliance treatment.

 

 

[1] This Convention, for those unfamiliar with it, is an international wildlife treaty that was adopted within the Council of Europe in 1979. The Convention attracted broad participation, with 51 parties, among which all EU Member States, most members of the Council of Europe (Russia being a notable exception) and a few African countries. For those more familiar with European law, the Bern Convention served as an inspiration for the 1992 Habitats Directive. Key provisions on species protection and habitat protection in the Bern Convention have been, along the same lines, copy-pasted into the Habitats Directive.

[2] I have drawn largely from F. Fleurke’s and A. Trouwborst’s analysis of the EU and Bern Convention’s enforcement mechanisms and Karen N. Scott’s analysis of the Bern Convention’s non-compliance mechanisms (F. Fleurke and A. Trouwborst, ‘European Regional Approaches to the Transboundary Conservation of Biodiversity: The Bern Convention and the EU Birds and Habitats Directives’, in L.J. Kotzé and T. Marauhn (eds.), Transboundary governance of Biodiversity, Brill/Nijhoff, 2014, 128-162; Karen N. Scott, ‘Non-compliance Procedures and the Implementation of Commitments under Wildlife Treaties’, in M.J. Bowman, P.G.G. Davies and E.J. Goodwin (eds.), Research Handbook on Biodiversity and Law, Edward Elgar, 2016, 425-428).

[3] Besides the legal protection offered by the European Court of Justice (CJEU), which has no equivalent in most MEAs, it is, under certain conditions, possible to directly or indirectly invoke EU law and legal instruments (such as Reg./Dir.) before national courts. The same is true for international law, such as the Bern Convention, but only in monist countries, where international law is accepted as a part of the national legal order. Another distinguishing feature of the EU (non-) compliance mechanisms is its preliminary reference procedure. If national courts have questions on the validity or interpretation of EU law they can refer these questions to the CJEU, which via a ruling, provides clarity on EU law, enhancing compliance. The Bern Convention, or most MEAs for that matter, do not have such a system.

[4] The Commission’s enforcement activities are usually triggered by a citizen’s complaint, often NGOs, reasoning that the nature protection directives have been badly applied. The Commission is happy to receive these complaints but requires the complainant to stay out of discussions on whether to look into the case and whether to take the case to the CJEU. The Commission only informs the complainant of the result of the negotiation between the Commission and the Member State. These negotiations are confidential: letters of formal notice or reasoned opinions are not made publicly available. The Commission’s enforcement powers are weakened by its lack of investigative and fact-checking powers. The Commission has no inspectors who could check the application of the nature directives within a Member State. (L. KRÄMER, ‘EU Enforcement of Environmental Laws: From Great Principles to Daily Practice – Improving Citizen Involvement’.)

[5] Ibid.

[6] Scott (n2) at 427.

[7] For the case-file documents in the Balkan Lynx and Lithuanian Powerline Project case (discussed under 3.1 and 3.2), see http://www.coe.int/en/web/bern-convention/-/35th-standing-committee-meeting (both discussed at the Bern Convention’s 35^th Standing Committee Meeting, 1-4 December 2015).

[8] Scott (n2) at 246.

[9] The Convention requires the protection of all wildlife species at a level that corresponds to ecological requirements. Parties can also cater for economic needs but in case of conflict between ecological and economic considerations, priority is given to the former. Some animals are on Appendix II, making them strictly protected species. It is for those animals prohibited to be killed, disturbed, damaged etc. These species benefit from a protective shield of armor. Other wild animals are enlisted on Appendix III and do not benefit from the prohibition to be killed or captured. Populations of the latter animals have to be kept out of danger. The Convention also requires parties, in pretty generic terms, to ensure habitat conservation (art. 4). This provision has been further developed through the designation of Areas of Special Conservation Interest under the Emerald Network. In the European Union, the Natura 2000 sites are their contribution to the Emerald Network. (See Fleurke & Trouwborst (n2).)

[10] A topical example concerns the border fences that have been erected throughout Europe to control migrant streams. Although these fences might hinder wildlife, Contracting Parties might, and possibly successfully, argue that this is necessary to maintain public safety, a possible exception ground.

[11] Bern Convention, Article 18(2).

[12] Scott (n2) at 426.

[13] That is the combined reading of Article 18(1) that provides that the Standing Committee endeavors to facilitate the settlement of difficulties and Article 14 that mandates the Standing Committee to make recommendations and arrange meetings.

[14] Scott (n2) at 426.

[15] Ibid. at 425.

[16] This population is morphologically and genetically very distinct from other Eurasian lynx populations in Europe and thus a separate subspecies (a distinct phylogenetic lineage of the Eurasian lynx) to be regarded as a conservation unit. (Bern Convention, T-PVS/Files (2015) 41, Hydro power development within the territory of Mavrovo National Park (“The former Yugoslav Republic of Macedonia”), Observers’ report following the on-the-spot appraisal, Report by Mr, Andràs Demeter, advisor, 35^th Meeting, Strasbourg, 1-4 December 2015, 18.)

[17] Boskov Most HPP, mainly funded by the EBRD and Lukovo Pole HPP, mainly funded by the WB.

[18] Bern Convention, T-PVS/Files (2015) 36, Hydro power development within the territory of Mavrovo National Park (“The former Yugoslav Republic of Macedonia”), On-the-spot appraisal, Report by Mr. Pierre Galland.

[19] Bern Convention, T-PVS/Files (2015) 41, Hydro power development within the territory of Mavrovo National Park (“The former Yugoslav Republic of Macedonia”), Report by the Complainant Eko-svest; Also see Observers’ report (n16) at 22; On-the-spot appraisal report (n18) at 11.

[20] Recommendation No. 157 (2011) of the Standing Committee on the status of candidate Emerald sites and guidelines on the criteria for nomination.

[21] Recommendation No. 162 (2012) of the Standing Committee on the conservation of large carnivore populations in Europe requesting special conservation action.

[22] Recommendation No. 184 (2015) on the planned hydropower plants on the territory of the Mavrovo National Park (“The former Yugoslav republic of Macedonia”).

[23] E.g. news item on the Environmental Justice Atlas website confirms the EBRD decided to suspend funding for Boskov Most HPP until the results of the new environmental assessment are made available.

[24] E.g. joint press release by CEE Bankwatch Network, EuroNatur and Riverwatch confirmed that the WB withdrew funding for Lukovo Pole HPP.

[25] Bern Convention, T-PVS (2011) 14, Standing Committee, 31^st meeting, Improving the Case-File System of the Bern Convention, document prepared by the Directorate of Culture and Cultural and Natural Heritage, 5-6.

[26] Ibid. at 6.

[27] Ibid. at 6.

[28]  Certain elements of the case pushed for mediation: the complaining NGO touched upon consequences the project would have on bird and animal life but data on species occurrence and the linkage to the conservation status of the species in the region is limited. Also, both the project investor, Nordic Investment Alliance, provided that its sustainability requirements were not breached and the Lithuanian Nature Fond argued the project did not violate environmental laws. Parties signed a Mediation Agreement consisting of 16 bullet points, amongst which practical recommendations: parties for instance agreed to adopt a monitoring plan for the species that are protected under the Bern Convention as well as installing flight diverters to make power lines visible to bird species. (Bern Convention, T-PVS/Files (2015) 51, Standing Committee, 20 October 2015, Mediation Procedure in the frame of complaint number 2013/5: presumed impact of a construction of overhead power lines (OHL) in an environmentally sensitive area in the Lithuanian-Polish borderland, Report of the visit, Document prepared by Mr Michael Usher, p. 14 for the Mediation Agreement.)

[29] I4th Annual Colloquium of the IUCN Academy of Environmental Law, at which this research was presented.

[30] For an overview of the (possible) files under the Bern Convention as of 1 February 2016 see:  Bern Convention, T-PVS/Inf (2016) 2, Standing Committee, 36^th Meeting, Register of Bern Convention Complaints, 1 February 2016.

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This post comes down to the written script of a recent conference presentation.  The purpose of the presentation was to lay a foundation that could serve as a basis for discussions (read: this is work in progress) on the value of the Bern Convention non-compliance mechanisms compared to the EU non-compliance mechanisms (J. DUBRULLE, 2016. Not a paper tiger, but a wily lynx: the evolving potential of the (non-) compliance mechanisms of the Bern Convention on European Wildlife Conservation, 14th Annual Colloquium of the International Union for the Conservation of Nature (IUCN) Academy of Environmental Law, Oslo (Norway), 23 June 2016). With many thanks to Arie Trouwborst and Floor Fleurke for not only giving me the idea to investigate this but also helping me out, more than one could reasonably expect, on the general outline/direction of this presentation. Credit is due to Melissa Lewis, for her valuable comments, too. Her excellent understanding of how international environmental law works in practice refined my thinking.

 

 

 

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