Analyzing The Binding Nature of COP Decisions ... - Natural Justice

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Some commentators have noted that by its nature, the CBD is more in the realm of a soft law instrument. Because of the contentious issues addressed by the CBD, the instrument was drafted with a “broad remit,” with many of the details to be implemented by individual Parties. 53 Rather than implementing additional hard law instruments, however, the CBD COP “develop[ed] soft instruments which are not backed by obligations.” 54Additionally, CBD COP Decisions themselves, which are often long and poorly organized, may hamper the hard nature of the instrument. 55 One commentator has suggested that because“it is quite difficult to determine the legal strength of CBD COP [D]ecisions on the basis of their wording, it seems that the pragmatic way to determine whether these decisions actually contribute to addressing climate change and biodiversity in a mutually reinforcing manner is to assess state practice, both in relevant international negotiations outside the CBD framework and in implementing CBD COP [D]ecisions at the national and local level.” 565. Summary Actions of COPs inhabit an ambiguous area in the binding/non-‐binding dichotomy of traditional international law. While some actions such as amending the governing instrument take place in a manner akin to formal treaty-‐making, other actions such as reaching agreement on decisions occur under less formal circumstances. The status of this latter category of actions is unclear. Applying formal treaty law, such actions appear to be more akin to soft law. 53 Harrop and Pritchard, at 476. 54 Harrop and Pritchard, at 479. Harrop and Pritchard do acknowledge that “[t]he setting of global targets has addressed one of the foundational inadequacies of the CBD, by providing necessary timelines, rates and measures.” Id. However, they note that “the convention’s work on targets has not to-‐date provided instruments that facilitate their national implementation.” Id. 55 See E. Morgera, Faraway, So Close: A Legal Analysis of the Increasing Interactions between the Convention on Biological Diversity and Climate Change Law, University of Edingburgh School of Law Working Paper Series 2011/05, at 2 (noting that “it is difficult to obtain a clear and comprehensive picture of the guidance given by the CBD’s Conference of the Parties” regarding climate change and biodiversity due to COP Decisions that are “generally long” and “not always well organized”). 56 Morgera, at 36.
Legal scholarship in regard to COP actions is still in its nascent stage, and in regard to actions of the CBD COP in particular, is essentially nonexistent. 57 As more actions are taken by COPs in the future, new approaches to analyzing the legal status of these actions such as the “interactional understanding” posited by Brunee may gain wider use. These approaches may help to clarify the legal status of COP actions. More importantly, the effects of COP actions on Parties’ behavior will help to determine whether or not they are binding. For the time being, however, there are no definitive answers regarding the binding nature of COP actions. 57 Morgera, at 36 n. 180 (noting that “of the authors that have discussed the legal significance of multilateral environmental agreements’ COP decisions, none has referred to the specific case of the CBD”).
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Analyzing The Binding Nature of COP Decisions ... - Natural Justice

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