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

1. Introduction It is in the nature of human beings to organize our world into a hierarchical structure, whether it be with regard to leadership, sports teams, or—more prosaically—the classification of international laws. On the latter point, two simple categories have developed to organize international law into a hierarchical structure. At the top is so called “hard law,” 2 generally created by treaties, which theoretically imposes binding legal obligations on member states. At the bottom is “soft law,” created by other instruments that theoretically are more in the nature of aspirational or moral goals. The operative word of course, is “theoretically.” It practice, it can be quite difficult to determine whether a particular instrument operates as hard or soft law. 3One such instrument that is difficult to classify is the Convention on Biological Diversity (CBD) and its subsidiary instruments. In theory, the CBD is hard law, a binding international treaty negotiated by governments. In practice, however, it has been argued that the “CBD conforms to the characteristics of other international hard laws that possess a soft nature.” 4This section explores the international legal context within which multilateral environmental agreements (MEAs) such as the CBD are developed. It then provides a brief description and preliminary analysis of the legal weight of the CBD. 52 Abbot, K.W. and Snidal, D., Hard and Soft Law In International Governance (2000) International Organization 54(3), 421 (defining hard law as “legally binding obligations that are precise (or can be made precise through adjudication or the issuance of detailed regulations) and that delegate authority for interpreting and implementing the law”). “The realm of ‘soft law’ begins once legal arrangements are weakened along one or more of the dimensions of obligation, precision, and delegation.” Abbot and Snidal, at 422. 3 Some suggest that such a clear distinction between hard and soft law may actually be a misnomer, given the process of compromise that leads to multilateral environmental agreements. Harrop, S.R. and D.J. Pritchard, A Hard Instrument Goes Soft: The Implications of the Convention on Biological Diversity’s Current Trajectory (2011) Global Environmental Change 21, 474-­‐480, at 476 (citing DiMento, J.F.C., 2003. The Global Environment and International Law, University of Texas Press, Austin). 4 Harrop and Pritchard, at 476. 5 This section focuses on the CBD to address the complexity of this issue because the CBD “has emerged as the ‘primary instrument’ and the preferred international forum for indigenous and local communities to express their interests and demands for the protection of their traditional knowledge[.]” E. Morgera and E. Tsioumani, Yesterday, Today, and Tomorrow: Looking Afresh at