Introduction
Global governance and international relations have witnessed a steady increase of international organisations (IOs) governing particular issue areas at the international level.Footnote 1 This phenomenon has been described as ‘treaty congestion’,Footnote 2 ‘institutional linkages’,Footnote 3 ‘clusters of regimes’,Footnote 4 ‘conglomerate regimes’,Footnote 5 ‘correlated regimes’,Footnote 6 ‘networks of regimes’,Footnote 7 ‘regime interplay’,Footnote 8 a ‘patchwork of international institutions’,Footnote 9 ‘organizational ecology’,Footnote 10 ‘fragmentation’,Footnote 11 and ‘polycentricity’,Footnote 12 but at this point scholars of International Relations widely use the concept ‘regime complexity’ to capture the proliferation and fragmentation of institutions, agreements, and sites where states negotiate legal text to codify the values, norms, and rules that should govern a particular issue area.Footnote 13 Empirical studies have shown that regime complexes are inherently dynamic, consisting of different phasesFootnote 14 and levels of IO involvement,Footnote 15 where IOs are considered to be both important elements of regime complexes as well as central actors within them.Footnote 16 During regime-complex formation and the different stages of their consolidation, IOs tend first to compete and then to specialise,Footnote 17 which may lead to a division of work and create synergies between regimes and their elements,Footnote 18 but which could also encourage forum shopping or regime shifting.Footnote 19
So far, empirical studies have largely produced descriptions of established regime complexes using analyses of mandatesFootnote 20 or treaty text citationsFootnote 21 to describe the units (e.g. legal agreements,Footnote 22 regimes,Footnote 23 IOs,Footnote 24 etc.) and connections (e.g. overlaps of governance topics,Footnote 25 conflict clauses in treaty text,Footnote 26 etc.), but central questions concerning the delimitationFootnote 27 of a sample of regimes into one analytical unit (a regime complex) and how the connections between the regimes formFootnote 28 remain unanswered. Although negotiations play an important part in regime-complex formation,Footnote 29 as actors tend to use intergovernmental negotiations, such as the Conferences of the Parties (COP) of the United Nations Framework Convention on Climate Change (UNFCCC), to exercise influence on the regime under discussion and its interlinkages with other fora,Footnote 30 negotiation sites themselves have remained rather neglected in debates about regime-complex formation and delimitation. This has come at the expense of knowledge about the delimitation and the agency of the involved IOs at the negotiation stage of regime-complex formation, where IOs seek a role and position in governing a specific issue area.
We advance this debate by showing how a regime complex forms through the interactions of IOs and states during negotiations, addressing the important role that intergovernmental negotiations play in the process of regime-complex formation.Footnote 31 Thus, we see regime-complex formation as a process to which negotiations contribute through the delimitation by states and the agency of IOs. Conversely, we see negotiations as a process in which a regime complex can form because states mention which IOs they see as part of the regime complex, and IOs express how they relate to the issue area under discussion. This process has different phases itself (i.e. rounds of negotiations) and does not preclude that IOs become part of the regime complex before or after negotiations conclude. With a view on regime-complex formation happening during the negotiations, we aim to complement existing research which largely focused on negotiation outcomes such as legal documents and texts.Footnote 32
Combining participant observation and collaborative event ethnography (CEE) to collect data on the actors and processes in negotiations with social network analysis (SNA), we present new empirical material illustrating (1) how a delimitation of the constituting elements of a regime complex based on states’ statements takes place, and (2) how IO interaction is structured. We aim to strengthen the methodological toolbox available to IR scholars for studying global governance by demonstrating both how dynamic relationships and networks between states and IOs unfolding within the organised social space of negotiating legal text contribute to regime complex formation and how SNA can help us to detect patterns in the behaviour of state and non-state actors.
We applied our methodology to the case of marine-biodiversity governance and use observational data collected during three intergovernmental conferences (IGC) (2018–19) on a new treaty for the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ)Footnote 33 as an entry point for our analysis. The new legally binding instrument is an implementing agreement of the United Nations Convention on the Law of the Sea (UNCLOS) and has the objective to establish a coherent legal framework for the management and conservation of biodiversity in the high seas beyond the boundaries of nation-states.Footnote 34 The BBNJ negotiations were distinctive in that, although the BBNJ negotiations took place under UNCLOS, it was widely recognised that the new agreement will interact with many existing treaties and IOs.Footnote 35 As one state delegate put it, ‘we need to be aware that we are creating a regime complex. This treaty will not function alone but will speak to other regimes and in relation to others’ (own observation, 20 August 2019). Accordingly, the BBNJ negotiations were shaped by governmental attempts to embed the new treaty within the existing legal framework governing marine biodiversity and to define relationships to other IOs in this particular issue area.Footnote 36
This article is structured as follows. The second section, by reviewing existing literature, demonstrates how new empirics can contribute to understanding how regime complexes form and discusses how we built on existing methodological approaches that focus on international negotiations. The third section describes the methods and data used for the empirical analysis, and the fourth presents the results, demonstrating how the IOs within the current marine-biodiversity regime complex can be identified, and how they interacted throughout three rounds of negotiations. Lastly, we discuss the results concerning our approach’s strengths and weaknesses, and implications for future research on regime complexity.
Understanding how regime complexes form
The proliferation of international treaties and organisationsFootnote 37 has been followed by literature using different concepts to address the increasing complexity of global governance. This literature is based on observations that IOs are ‘embedded in a larger web of international rules and regimes’.Footnote 38 Raustiala and Victor introduced the concept of a ‘regime complex’,Footnote 39 which has found popularity in the field of global environmental governance.Footnote 40 A regime complex is defined as ‘an array of partially overlapping and non-hierarchical institutions governing a particular issue area’.Footnote 41 Literature on regime complexes has identified as topics to be addressed: (1) a lack of clarity on the delimitation of elements;Footnote 42 (2) a gap in describing the dynamics between IOs;Footnote 43 and (3) a lack of active fieldwork, as most studies so far have relied on desk research.Footnote 44 This section reviews relevant literature to clarify our contributions.
The problem of regime-complex delimitation
One defining part of a regime complex is the ‘array of … institutions’,Footnote 45 raising the question of how to delimit this array: where does it start, where does it end – or which IOs are in and which are out – and what makes them a regime complex? When the boundaries between regimes become blurred,Footnote 46 it is difficult to define a delimitation of a regime complexFootnote 47 or to assess which IOs are ‘in the same population’,Footnote 48 which has led to varying mappings of the same regime complex.Footnote 49
Addressing these questions, Hollway shows that it is the dependence among regimes that makes a set of regimes complex.Footnote 50 Orsini, Morin, and Young argue that ‘perceptions draw the boundaries of the complex, indicating which regimes are recognized or not as elements of a complex’.Footnote 51 Perception becomes key when approaching the delimitation problem in the phase of intergovernmental negotiation. In this phase, the regime complex is not yet codified in adopted legal text and the elements ‘governing a particular issue-area’ are still up for debate.Footnote 52 It is not yet clear which IOs will govern the issue area, but instead IOs compete for governance tasks and states favour diverging IOs according to their interests.Footnote 53
The delimitation of the regime complex is not predetermined but is often the outcome of international negotiations or other state or organisational deliberations such as forum-shopping.Footnote 54 In any case, a delimitation that considers only institutions that possess formally codified overlaps risks falling short of understanding that the regime complex exists not necessarily only through legal documents but also through the perception of actors,Footnote 55 and that regimes may develop in interdependence to each other even without codified relationships.Footnote 56
Despite the scholarly recognition of these factors, the delimitation problem of regime complexes has not been sufficiently discussed in the literature, which has largely focused on studying established regime complexes. These accounts relied on arguably rather static legal documentsFootnote 57 and did not consider social data from within negotiations, thus not accounting for the dynamics of international negotiations.Footnote 58 IOs may interact and compete during negotiations without becoming part of the codified regime complex. In summary, there has been a lack of work supported by empirics that can broaden the delimitation of elements of the regime complex to acknowledge the IOs that governmental negotiators perceive and consider as relevant.Footnote 59 This study thus aims to contribute to the existing literature by bringing actor-oriented data from negotiations to the analysis in order to complement studies that used formal documents.
IO behaviour in regime complexes
Research has shown that the ‘density of international rules and institutions’Footnote 60 has effects on actors’ behaviourFootnote 61 and on global governance in general.Footnote 62 Understanding IO behaviour requires theoretical guidance on the process of regime-complex formation. Orsini, Morin, and Young identified four stages in the life cycle of regime complexes. The first is ‘atomisation’: elemental regimes exist separately. The second stage is ‘competition’: the complex takes shape, and the elemental regimes compete for strategic positions. To move from the first to the second stage, actors need to perceive the complex and become aware of its externalities. IOs tend to ‘compete’ for authority and potentially engage in conflictFootnote 63 because they need to secure support from their constituents.Footnote 64 Hence, scholars understand IOs under regime complexity to be ‘self-interested bodies that are predominantly interested in increasing their individual resources and competencies’.Footnote 65 Alter and Meunier noted that the negotiation of an international agreement belongs to the stage of competition, during which actors’ strategies concerning the preferred legal, normative, and institutional setting become visible.Footnote 66 In the third stage, labelled ‘specialisation’, actors create common metaprinciples that increasingly manage competition.Footnote 67 This means that over time, competition between IOs is expected to decrease as they increasingly accommodate each other’s positions in the regime complex, ‘specialise’,Footnote 68 and defer to each other.Footnote 69 The fourth and final stage is ‘integration’: the complex becomes unified and stable.Footnote 70
Hence, the authors see competition and specialisation as specific stages in the evolution of a regime complex,Footnote 71 but this scheme has so far rarely been filled with empirics. Further, assuming that IOs compete and specialise requires an approach that acknowledges the agency of IOs in global governance, which in turn raises the question of how to observe this agency. We argue that competition and specialisation are inherently relational processes and propose to look at the statements of IOs during the negotiations to observe these interactions and to use SNA to analyse patterns within them.
Negotiations as social spaces to study regime complexity
The view that regime complexes are social systems is not new, and literature on regime complexes has grown through the application of network analysis,Footnote 72 complexity theory,Footnote 73 and empirical ethnographies to capture the relational dimensions of regime complexity.Footnote 74 Using SNA to study regime complexes brings about analytical synergies,Footnote 75 such as a shared focus on structure and interactions.Footnote 76 Therefore, a growing body of literature describes conflictual or synergicFootnote 77 relationships between international institutionsFootnote 78 at different levels. By highlighting that regime complexes are networks of regimes,Footnote 79 authors have demonstrated the network structure of the international environmental governance system,Footnote 80 where overlaps are operationalised as references that connect legal textsFootnote 81 or as collaborative links between organisations’ secretariats.Footnote 82 However, network scholars have often encountered the problem of accessing detailed relational data to describe and analyse regime complexes at different stages of their formation, and arguably the methodological approach to do so. Subsequently, many researchers conducting SNA relied on legal documents – a data source that arguably is particularly ‘unsocial’ and not interactive but rather the outcome of social interactions – to identify the elements of a regime complex and record overlaps between them.Footnote 83
In order to address this shortcoming, we built on a body of literature that has produced empirical ethnographies of international negotiations and other sites of global governance.Footnote 84 Negotiations were found to be an important step in the formation of a regime complex,Footnote 85 and an issue area is understood to be a set of issues ‘dealt with in common negotiations’.Footnote 86 Further, ethnographic studies of global governance have established that international negotiations are largely social eventsFootnote 87 and have emphasised the relational and interactional aspects of negotiationsFootnote 88 – both central themes for regime complexity and network analysis. Hence, scholars have repeatedly identified the potential for ethnographic studies to shed light on inter-institutional complexity by considering the perceptions of negotiators and participants of international negotiations,Footnote 89 as well as by providing a wealth of relational and social data for network analytic approaches.Footnote 90 Regime complexes may emerge through various developments such as international crises,Footnote 91 state strategies,Footnote 92 the activity of secretariats,Footnote 93 or the influence of small groups of people,Footnote 94 but the study of negotiations on a new treaty can offer a window to observe the formation of regime complexes.Footnote 95
Particularly, CEE, which collects data at intergovernmental negotiations, has become a widely applied research method in international environmental politics.Footnote 96 CEE has the advantage of dispatching a team of researchers to highly complex and dynamic negotiation sites, which enables the researchers to collect and connect various data sources.Footnote 97 Similarly to CEE literature, we approach the negotiations as sites of social interactionFootnote 98 and make use of collecting data ‘within’ the negotiations, being sensitive to social and relational interactions in the negotiations.Footnote 99 Approaching regime complexity with a CEE view, we focus on the processes rather than the outcomes of international negotiations in which governmental and non-governmental actors shape the regime complex through social and political struggles.Footnote 100
However, in contrast with most CEE contributions, we use participant observation from the CEE toolkit as a data collection method and SNA as an analytical tool. Separating data collection and data analysis methods had a number of advantages: first, it allows different researchers to contribute to the same database of observations, which is used for different research purposes. This enabled us to systematically track the involvement of IOs throughout negotiation rounds, even when the researchers conducting the SNA were not present themselves. Second, in this way, the data and the method underlying the network analysis can be published to make the analysis reproducible and comprehensible. While the proposed combination of CEE with SNA in this way brings several advantages, it does render the ‘relational’ nature of the data relatively thin compared to a full ethnographic account of relationality. Building on the ethnographic and network-analytic work in the area of regime complexity, the next section describes a methodology to combine both: data collection through participant observation and CEE at international negotiations and network analysis using the collected data.
Combining observational data collection and social network analysis
While much of the work on regime complexes has relied on desk research,Footnote 101 surveys, or document analysis to identify the elements of the complex,Footnote 102 we propose studying the regime complex from within the negotiations. We used the ongoing BBNJ negotiations to collect data via participant observation as well as document analysis, making use of the rich network data collection opportunities offered by IGCs.Footnote 103 During the second and third two-week IGC sessions, three researchers conducted CEE at the New York headquarters of the United Nations (UN). During plenaries, working-group sessions, and side events, we made systematic observations on the delegation of the speaker, the section of the draft text, and the statement’s content.Footnote 104 Regarding the first IGC, which the research team did not attend, we watched the proceedings via the UN webcast and made observations with the same system.Footnote 105 Furthermore, all draft treaty texts were included in the document analyses. Our data collection and variables are summarised in Table 1. We scanned the more than 10,000 observations for either (1) state references to IOs, to delimit the regime complex according to the statements of negotiators;Footnote 106 or (2) IO statements, to analyse their behaviour.Footnote 107
Table 1. Overview of data collection.
In analysing the observations, we combined network analysis with qualitative interpretations,Footnote 108 following the identified need to mix quantitative and qualitative methods in the description of regime complexes.Footnote 109 We mapped the IOs that are associated with the marine-biodiversity regime complex and how they overlap as network graphs and used qualitative insights from our observations to interpret them. The observations contain relational data because IOs enter into a relational structure when they overlap regarding the treaty provision on which they make a statement. To analyse and uncover patterns in the structure of these relations, we propose using SNA. We differentiate between the three IGCs to emphasise the dynamics of the negotiation process.Footnote 110 In the following sections, we explain our methodological approach for the two main contributions of this paper: (1) the delimitation of the constituting elements of the regime complex; and (2) the description of patterns of interaction between them.
Delimiting the ‘constituting elements’
According to Raustiala and Victor, ‘regimes’ are the elements of a regime complex.Footnote 111 To shed light on the behaviour of elements of the regime complex, we need to take into account their agency and acknowledge that non-state actors also play an active part ‘in the design and construction of the institutional framework of global governance’ through their active involvement.Footnote 112 Thus, this study operationalises the conceptualisation by Raustiala and Victor in a way that makes regimes and their interactions in negotiations observable. We adopt the definition of elements of the regime complex by Langlet and Vadrot that IOs contain (1) a normative framework (normally codified in a treaty); (2) member states (or other international organisations as constituting members); and (3) a body such as a secretariat with staff, budget, and a registered office that embodies the normative framework and sends representatives to the negotiation site.Footnote 113 Further, we take into account organisations of the UN system that represent certain normative frameworks and can compete in governing a certain issue area,Footnote 114 but we do not include NGOs as elements of the regime complex, although some have argued that ‘clubs, private regulations and transnational initiatives’Footnote 115 or other non-governmental actors such as citiesFootnote 116 are indeed elements of a regime complex. In our case, they cannot be mandated by states to govern a particular issue area of international law and are thus excluded from the analysis.
Because we aim to find IOs that govern a ‘particular issue area’,Footnote 117 we concur that issue areas are sets of issues ‘dealt with in common negotiations’.Footnote 118 Operationalised, this means that issues are the individual provisions of the draft treaty text, which in total is the issue area dealt with in common negotiations. To advance rules for the delimitation of our sample of elements of the regime complex, we scanned our observations for state references to IOs. Any time a state mentioned an IO in a statement, we recorded this for the delimitation of the elements of the regime complex. For each IGC, these references were compared to the IOs that were mentioned in official draft texts to contrast a delimitation based on official documents with a delimitation based on perceptions and interactions.
These considerations helped us to combine various data sources (Table 1) to delimit the boundaries of the regime complex through the following rule: an IO must have: (1) made a formal statement; (2) be referred to by states in the room; or (3) be mentioned in a draft text.
Detecting competition and specialisation during negotiations
In addition to delimiting the elements of the regime complex, this paper looks at relational patterns between IOs to analyse how they influence global governance structures through their involvement in negotiations.Footnote 119 To create a network, we scanned our observations for statements of IOs and connected each statement to the relevant provision of the draft treaty. These overlaps between IOs, i.e. when two or more IOs make statements in the negotiations on the same provision of the treaty draft text, represent the links between IOs in the emerging network.
To justify that these overlaps are indeed relational, we analysed the IOs’ statements. We found that IOs generally make similar statements to each other in which they underline their own competence, mandate, and interest in working in relation to a certain provision of the treaty. UNEP, for example, by referring to its regional seas programmesFootnote 120 or its ocean-monitoring center,Footnote 121 indicated that it is competent to be tasked to manage aspects of marine biodiversity. The IOC declared that it was ready to provide member states with technical assistance to develop a proof of concept for the clearing-house mechanism,Footnote 122 and WIPO emphasised that it already had the mandate to govern intellectual property aspects of the new agreement.Footnote 123 While most of the analysed statements follow this communicative style, some statements indicated more directly a competitive relationship. For example, the FAO, by highlighting that existing bodies should be respected, underlined its authority over fishing-related matters and urged other IOs present in the room to refrain from interfering with ‘its’ topic.Footnote 124 On the other hand, we could not observe a single statement in which an IO advocated for the recognition of another IO’s mandate. Overall, IO statements express a conscious decision to intervene on a specific provision and thus, if two intervene on the same provision, a shared interest between two or more IOs. In this way, we argue that IOs enter a relational structure when both make a statement on the provision. As a next step, we conducted SNA to uncover patterns in the relational structures between IOs, which are displayed in the following section. This approach limits the scope of our analysis to IOs that were ‘present’ during the negotiations and took the floor to make statements.
We suggest two readings in the relational structure: first, overlaps – when two (or more) IOs make statements in the negotiations on the same provision of the treaty draft – can be read as competition, because competition among IOs has repeatedly been observed in regime complexesFootnote 125 and IOs are expected to compete when experiencing complexity because they need to secure their position, financial resources, and governance tasks.Footnote 126 We argue that when states negotiate a new treaty, and with it additional financial resources and governance tasks, statements highlighting IOs’ competence and relevance in relation to the targeted treaty provision can be viewed as competition when a second IO makes a similar statement on the same provision. Competition may not be directly expressed in the statement (which is expected in diplomatic settings where potentially conflictual statements are often formulated in very diplomatic language) and may not even be conscious behaviour, but competition emerges when two or more IOs make similar statements on the same treaty provision.
Second, it is suggested that specialisation takes place when IOs make statements in relation to treaty provisions in which no other IO appears interested. Just as with competition, specialisation is a behaviour that has been observed when IOs face complexity.Footnote 127 When IOs highlight how their competences and mandates could contribute to the objectives and tasks of the agreement and no other IO makes a similar statement on the same treaty provisions, they seem to recognise the other IOs’ competence and specialisation.
The case of the marine-biodiversity regime complex
Delimiting the ‘constituting elements’
In this section, we describe the formation of the new marine-biodiversity regime complex in the course of the three IGCs and describe its delimitation based on three graphs displaying the elements of the complex in each of the three IGCs – as proposed by states and as codified in the draft text.
During the IGCs, states refer to IOs they perceive to play a role in relation to the topic that is being negotiated. In the follow-up of an IGC, the presidency drafts a new version of the treaty text based on the statements that were made during the negotiations. As this codifies the current status of the negotiations (and the role of IOs within them) at the end of each negotiation round, this is the last step of each round and the first of the next round accordingly. The draft text serves as the basis for negotiations and structures the discussion on specific provisions.
Figure 1 visualises the chronology of the data presented in Figures 2–7 from IGC 1 to IGC 3.
Figure 1. Chronology of data.
Figures 2–4 show a network of IOs connected through references made by state delegates. By recognising different IOs in relation to the same treaty provision, states express diverging political interests that shape the constitution of the regime complex. Technically, if states mentioned two or more IOs in the same treaty provision, these will be connected through this provision. We present the negotiation of the regime complex as a network in which IOs become connected by being jointly mentioned in the same treaty provision. Figure 2 is the first step in this phase of regime-complex formation in which states delimit which IOs should be part of it and which not.
Figure 2. IOs are connected through provisions in which states referred to them in IGC 1. In blue are IOs that appear in the draft text after states mentioned them, in red IOs that did not appear in the draft text.
Figure 2 shows that in IGC 1, states refer to a considerable number of IOs – 27 in total. States perceive UNDOALOS, CBD, ISA, IOC, FAO, and IMO as central parts of the regime complex, and, accordingly, they appear in the resulting draft text after IGC 1. This shows how the marine-biodiversity regime complex evolves formally into legal text when the IOs that states propose are mentioned in treaty provisions. We see that while 14 of the IOs that were mentioned by states appear in the draft text (in blue), 13 do not (in red).
Figure 3 shows that states refer to 17 IOs in IGC 2. We see that states mention fewer IOs as they start to agree on the delimitation of the regime complex that is represented by a thinning out and a simultaneous consolidation of the centre of the network. Now, only 5 out of the 17 IOs are mentioned in the following draft text. We see that IOs such as FAO and IMO moved away from the centre of the network (e.g. were mentioned less by states) and subsequently were deleted from the draft text. A similar fate can be observed for IOs that were mentioned rather peripherally in IGC 1 and which do not appear in the next step of the emerging regime complex in IGC 2, such as UNEP, GCF, and CITES. On the other hand, some peripheral IOs such as WIPO and the GEF remain part of the codified regime complex, although they are only mentioned in relation to a few treaty provisions.
Figure 3. IOs are connected through provisions in which states referred to them in IGC 2. In blue are IOs that appear in the draft text after states mentioned them, in red IOs that did not appear in the draft text.
The thinning out of the regime complex continues during IGC 3. In IGC 3, states referred to only 15 IOs, of which only 3 are mentioned in the following draft text. The three IOs that remain in the draft text occupy a central position, meaning that states perceive them to be important to many different aspects of the treaty.
In total, throughout the three IGCs, we can observe how states first propose many elements of the emerging regime complex, out of which some become part of the codified regime complex. Here, we want to highlight the different delimitation methods. Regime-complex descriptions relying only on codified documents such as treaty texts would not be able to observe the IOs that states consider and propose to play a role but that do not make it into the draft text. This means that research approaches looking only at the treaty draft text would only conceive IOs in blue to be part of the regime complex. We can see from Figure 2–4 that in fact the majority of IOs do not appear in the draft text, although states mentioned them and thus seemed to consider them important for the future governance of the regime complex.
Figure 4. IOs are connected through provisions in which states referred to them in IGC 3. In blue are IOs that appear in the draft text after states mentioned them, in red IOs that did not appear in the draft text.
Detecting competition and specialisation during negotiations
After states made their statements, IOs took the floor and issued statements on specific BBNJ treaty provisions to express their competence, existing mandate, and interest in relation to specific provisions.
During the first IGC, 12 IOs made 38 statements in relation to 14 different provisions of the draft treaty. The following networks of IOs show that several IOs sought to be recognised within the future BBNJ agreement. Figure 5 demonstrates that all IOs (with the exception of WIPO) overlap in their statements in relation to treaty provisions. IOs enter a relational structure by making statements, and if overlaps are interpreted as competition, the results confirm to some extent literature that expects competition among IOsFootnote 128 that use negotiations to attempt to increase their individual resources and competences.Footnote 129
Figure 5. IOs are connected by making statements regarding the same treaty provision in IGC 1. In blue are IOs that appear in the draft text after states mentioned them, in red IOs that did not appear in the draft text.
This pattern, however, seems to change as the negotiations move on. During IGC 2, we can observe that IO behaviour begins to diverge. While the number of total statements remains equal at 38, now 10 different IOs relate to 17 different treaty provisions, and two opposing trends emerge. While the separation of the CBD from the main component and the disappearance of WIPO and the CMS indicate that there may be a specialisation taking place, overlaps between IOs in the centre seem to be aggravated.
In IGC 2, the CBD focuses solely on provisions that no other IO appears to be interested in, and WIPO, which had shown a similar behaviour in IGC 1, does not make any statement. In this way, some IOs find their position in the new regime complex, and other IOs then focus on other parts of the treaty – IOs specialise or find their niche in organisational ecological terms.Footnote 130 However, among a few IOs, particularly the closely connected UNEP, IUCN, FAO, and IMO in the centre of the network, competition appears to persevere. These IOs are also the ones that were taken out of the draft text in IGC 2 (as indicated in red), which additionally suggests that they needed to highlight their work in relation to the treaty.
During IGC 3, only 8 IOs made statements in relation to 16 provisions (Figure 7). However, the overall number of statements increased to 53. We can see a continuation of the trends identified in Figure 6: some IOs (NEAFC and NPFC) cease to make statements. The IOC and ISA move away from the centre of the network where contestation persists and seem to specialise in specific provisions. Interestingly, both IOs are mentioned in the draft text (indicated by the blue colour). This suggests that they may have found their niche, which is codified in the draft text, and in response move away from competing. On the other hand, we also observe a further increase of overlaps in the centre, particularly among the four IOs (UNEP, IUCN, FAO, and IMO) that have been at the centre throughout all three IGCs. The thickness of their links indicates that the number of overlaps has increased, possibly indicating increased competition.
Figure 6. IOs are connected by making statements regarding the same treaty provision in IGC 2. In blue are IOs that appear in the draft text after states mentioned them, in red IOs that did not appear in the draft text.
Figure 7. IOs are connected by making statements regarding the same treaty provision in IGC 3. In blue are IOs that appear in the draft text after states mentioned them, in red IOs that did not appear in the draft text.
Discussion
We set out in this paper to (1) show how a methodological focus on international negotiations combining observational data collection methods and SNA can contribute to understanding the formation of a regime complex by obtaining and analysing new data; (2) demonstrate how this data can be used to delimit the regime complex based on the perception of actors, rethinking traditional ways to delimit the regime complex; and (3) advance understanding of competition and specialisation among IOs during the ongoing negotiations. The following section first discusses the methodological contributions and their implications for regime-complex delimitation and then evaluates the results regarding the competitive and specialising behaviour of IOs, while giving an outlook on further research.
Combining observational data collection and SNA at international negotiations to fill the data gap
We studied the emerging marine-biodiversity regime complex by collecting data at ongoing negotiations. We consider negotiation sites as organised social spaces, in which the regime complex forms through interaction and recognition between state and IO actors that can become codified in legal text. This study addressed the gap in active fieldwork, as regime complex research has relied ‘too heavily on desk research’.Footnote 131 We filled in detail two empirical gaps: (1) the delimitation occurring before a regime complex is codified in legal documents; and (2) IO interactions during the negotiations of the regime complex.
We demonstrate how data collected at intergovernmental negotiations can be used to apply social network analyses,Footnote 132 which in turn are interpreted qualitatively. We believe that this combination of observational methods of data collection and SNA shows great potential for further research on regime complexes to complement work that so far has used shared membership,Footnote 133 treaty text citations,Footnote 134 or participants’ biographiesFootnote 135 to gather data that captures elements of relations such as structured interactions between actors. It uses the strengths of CEE to gather data collectively in highly interactive settings, while being sensitive to the minutiae of social interaction and the strengths of qualitative SNA, focusing on structures that emerge from interactions. In this way, SNA helped to uncover interactional patterns that would have been invisible to a network-insensible observer and guided our qualitative interpretations, adding a social dimension to the delimitation problem of regime-complex research.Footnote 136
While this approach has advantages when it comes to identifying the elements and overlaps of a regime complex, it also suffers from some limitations. First, the collected data was used to study a regime complex in the making, offering a live window into regime-complex emergence, but failing to capture the whole life cycle of regime complexes. Once the negotiations are finished and the new treaty is in place, one would need to adapt the research approach by (1) looking at potential conference of the parties (COPs) meetings of the new regime or (2) looking at other relevant meetings and negotiations to track the involvement of the IOs identified in this paper. Secondly, CEE requires access to negotiation sites and shared fieldnote-taking practices, which is resource- and time-consuming and may not be a feasible research design for single researchers or scholars who do not get access to the negotiation site.Footnote 137
The problem of regime-complex delimitation
We show that a regime complex can be delimited through state references to IOs. States recognise different IOs in relation to the issue area, expressing different preferences regarding the development of the marine-biodiversity regime complex. In this way, the regime complex can be delimited by going beyond rather static legal texts and considering the perception of actors and the varying levels of integration of elements in the regime complex. We hereby contribute to defining the boundaries of the ‘array of … institutions’.Footnote 138 We demonstrate that IOs play a role – to a varying extent – in relation to the treaty because representatives of states and IOs perceive them to be a part of the regime complex even if they do not become legally codified elements of it.Footnote 139 This different way of delimiting the regime complex becomes crucial when analysing the final treaty text. By looking only at the text of the finalised agreement, one would perceive the GEF, IOC, ISA, IMO, and FAO as part of the regime complex but would potentially fail to recognise the key role played in the eyes of states by the CBD, UNEP, or regional organisations such as OSPAR in relation to the governance of marine biodiversity. In this way, our method can make visible what is not in the final text but, nevertheless, continues to influence the governance of the marine-biodiversity regime complex. However, no delimitation will ever be final, as the regime complex also continues to evolve outside or after international negotiations.
IOs are involved to different extents – some make statements in the negotiations, some are perceived by states to be important, and some may receive a formal mandate under the new treaty. However, the fact that the final text mentions fewer IOs than previous drafts and much fewer than mentioned by states, and all IOs except for the GEF in only one provision (on the clearing-house mechanism), may indicate that, with increasing complexity, international documents tend to have fewer references to IOs, as it could become too contested and ‘messy’. This outcome, both the lack of mention of many IOs and the mention of four IOs in one provision, raises the question of how a division of work may materialise in the future.
The marine-biodiversity regime complex is particular in its awareness and explicit recognition of inter-institutional dependencies, which may limit the applicability of the proposed delimitation method. Still, we argue that some aspects can be considered for future research into regime complexes in other issue areas: it is not only the legal overlaps in treaty texts but also the perception of policymakers that makes the regime complex.Footnote 140 This implies that there is not one correct way to delimit the regime complex – rather, there are different levels of integration and interdependence,Footnote 141 and the right delimitation may depend on the interest and analytical focus of the researcher. While we acknowledge that state statements and, hence, the delimitation of the regime complex reflect larger geopolitical interests and conflicts, we do not address them in this paper but encourage research into the geopolitical conflicts and configuration of authority and legitimacy in complex international governance that may be represented in the delimitation of a regime complex.Footnote 142
IO behaviour in regime complexes
This paper proposes a structural view of competition and specialisation among IOs during negotiations and places its insights into the discussion on IO behaviour in regime complexes. While the analysis suggests that overlaps in statements mean competition, this interpretation leaves room to further study the behaviour and intentions of IOs in negotiations. For example, a more systematic qualitative analysis of the overlaps shown in Figures 2–7 may highlight different strengths and qualities of statements, giving insights about the underlying intentions. Conducting interviews with IO representatives could also further strengthen analyses of their behaviour at negotiations. The results of this paper can support the view that IOs engage in competitive behaviourFootnote 143 when facing regime complexity but add important depth to the dynamics during the negotiation phase.
We show that the negotiation phase is a process itself, and dynamics change over time. After the first round of negotiations, the number of overlaps in IO statements decreased, suggesting that IOs started moving towards a division of labour and specialisation (Figures 5–7).Footnote 144 At the same time, while some (WIPO, CBD, ISA, IOC) specialised, other IOs (UNEP, IUCN, FAO, IMO) seemed to intensify competition. This IO behaviour seemed to correlate with their being mentioned in the draft text. IOs tended to specialise when states identified a role for them and codified this in the relevant treaty provisions. IOs that were continuously not mentioned in the draft text seemed to have intensified their competition, making an increased number of statements in overlapping provisions This contradiction between making statements and being mentioned in the text extended to the final text. The GEF – the IO that did not make any statement during the three analysed IGCs – is mandated a special role as part of the financial framework of the new treaty. But two of the IOs that made many statements are not mentioned at all (UNEP and IUCN), and four other IOs are mentioned as potential examples and contributors to the clearing-house mechanism of the BBNJ instrument.
These findings speak to Orsini, Morin and Young and Morin and Orsini,Footnote 145 who theorised that in the formation of a new regime complex, elements first compete, then manage their competition and specialise, before becoming a stable regime complex. While our findings support the notion that a regime complex evolves, we suggest that the view of the different phases may be too simplistic, as both competition and specialisation already seem to occur simultaneously during the negotiations. We also add that not all IOs specialise, but some may increase their competition instead. Negotiations may be a particularly interesting moment to study these dynamics because the regime complex seems to influence the behaviour of IOs and states while at the same time being shaped by their statements.
Looking forward, it remains to be seen how the described dynamics evolve once the BBNJ treaty has entered into force – and how far this can be studied with similar methods. While we expect the IOs to further specialise, our results also suggest that a regime complex constantly changes as states and IOs adapt their strategies and behaviour to the regime complex.Footnote 146
Annexe
List of IOs:a
- Abbreviation
Full Name
- BARCELONA CONVENTION
Mediterranean Action Plan
- CBD
Convention On Biological Diversity
- CCAMLR
Convention for the Conservation of Antarctic Marine Living Resources
- CCSBT
Commission for the Conservation of Southern Bluefin Tuna
- CITES
Convention on International Trade in Endangered Species of Wild Fauna and Flora
- CMS
Convention on Migratory Species
- FAO
Food and Agriculture Organization of the United Nations
- GBIF
Global Biodiversity Information Facility
- GCF
Green Climate Fund
- GEF
Global Environment Facility
- GESAMP
Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection
- HELCOM
Baltic Marine Environment Protection Commission
- IAEA
International Atomic Energy Agency
- ICES
International Council for the Exploration of the Sea
- ICJ
International Court of Justice
- IMO
International Maritime Organization
- IOC
Intergovernmental Oceanographic Commission UNESCO
- IPBES
Intergovernmental Science-Policy Platform for Biodiversity and Ecosystem Services
- IPCC
Intergovernmental Panel on Climate Change
- ISA
International Seabed Authority
- ITLOS
Tribunal for The Law of the Sea
- IUCN
International Union for Conservation of Nature
- MINAMATA
Convention on Mercury
- NAFO
North-West Atlantic Fisheries Organisation
- NEAFC
North-East Atlantic Fisheries Commission
- NPFC
North Pacific Fisheries Commission
- OECD
Organisation for Economic Co-operation and Development
- OSPAR
Ospar Commission for the Protection of the Marine Environment of the North-East Atlantic
- PACIFIC ISLAND FORUM
Pacific Island Forum
- SEAFO
South East Atlantic Fisheries Organization
- UNDOALOS
Division for Ocean Affairs and the Law of the Sea – Office Of Legal Affairs
- UNDP
United Nations Development Programme
- UNFCCC
United Nations Framework Convention on Climate Change
- UNFSA
United Nations Fish Stocks Agreement
- UNIDO
United Nations Industrial Development Organization
- WCPFC
Western and Central Pacific Fisheries Commission
- WIPO
World Intellectual Property Organization
- WMO
World Meteorological Organization
- WORLD BANK
The World Bank Group
- WTO
World Trade Organization
aFor a more comprehensive list, see Langlet and Vadrot, ‘Not “undermining” who?’ or {https://phaidra.univie.ac.at/detail/o:1613830}.
Acknowledgements
We would like to thank James Hollway, Jean-Frédéric Morin, Matthew Paterson, and the three anonymous reviewers for their valuable feedback on this manuscript. This article would not have been possible without the work of Ina Tessnow-von Wysocki, Paul Dunshirn, Silvia C. Ruiz R., and Simon Fellinger, who contributed to the ethnographic data collection. Finally, we would like to thank the International Studies Association (ISA) for providing us with access to the BBNJ negotiations and the European Research Council (ERC) for funding the research presented in this article under the European Union’s Horizon 2020 research and innovation programme (grant agreement No 804599 – MARIPOLDATA – ERC-2018-STG).
Funding statement
The research presented in this article was funded by the European Research Council (ERC) Horizon 2020 research and innovation programme (grant agreement No 804599 – MARIPOLDATA (www.maripoldata.eu) – ERC-2018-STG, grant holder: Alice Vadrot).
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