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

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specified in that protocol … has been deposited.” Where a protocol has entered into force without the ratification of a particular Party, the protocol will enter into force for that Party once the Party “ratifies, accepts or approves that protocol or accedes thereto”. 30Amendment of the CBD or protocols thereto is governed by CBD Article 29. CBD Article 29(3) instructs the Parties to “make every effort” to reach agreement on proposed amendments to the CBD or any protocol by consensus. If consensus is not possible, as a last resort the Parties shall “be adopted by a two-‐third majority vote of the Parties to the instrument in question present and voting at the meeting, and shall be submitted by the Depositary[ 31 ] to all Parties for ratification, acceptance or approval.” 32 Parties then notify the Depositary of their acceptance of the amendment. Amendments only enter into force with regard to a particular Party if that Party has accepted enforcement. 33Adoption and amendment of annexes to the CBD or any protocol is governed by CBD Article 30. 34 Annexes are to be proposed and adopted pursuant to the procedure set forth in Article 29. However, any Party that is unable to approve an annex must notify the Depositary within one year from the date that it is notified of the annex’s adoption. 35 If such notification is not provided within the prescribed time frame, “the annex shall enter into force for all Parties to this Convention or to any protocol concerned”. 36 Amendments to annexes follow the same procedure as proposal, adoption and entry into force of annexes. 37As these provisions demonstrate, different rules apply to different COP actions under the COP. For example, the minimum number of Parties required for a protocol to enter into force is set forth in the protocol itself, and conceivably could consist of only two parties. However, the protocol only enters into force for those Parties that have agreed to be bound by it. With regard to amendments to the CBD or protocols, Parties must first seek to reach agreement by consensus. If consensus is not possible, amendments can be adopted by a 30 CBD Article 36(4). 31 The Depositary is the Secretary General of the United Nations. CBD Article 41. 32 CBD Article 29(3). 33 CBD Article 29(4). 34 “[A]nnexes shall be restricted to procedural, scientific, technical and administrative matters.” CBD Article 30(1). 35 CBD Article 30(2)(b). 36 CBD Article 30(2)(c). 37 CBD Article 30(3).
two-‐third majority vote of the parties to the instrument in question. Amendments only enter into force for those Parties that have agreed to be bound by it. 38Annexes and amendments thereto are adopted pursuant to the same process as amendments to the CBD or protocols with one important distinction. Unlike amendments to the CBD or protocols, where Parties opt-‐in in order to be bound by them, Parties must opt-‐out of annexes or amendments thereto by notifying the Depositary that they do not want to be so bound. Failure to do so will mean that the annex will enter into force with regard to that Party. The distinction between opting in and opting out is important because it puts the onus on the Parties to the CBD to take action if they do not want to be bound by an annex or amendment thereto. Whereas inaction in the context of adopting a protocol or an amendment to the CBD or a protocol will mean that the Party will not be bound by the protocol or amendment, inaction in the context of an annex or amendment thereto will mean that the Party will be bound. This distinction is also important because although the CBD states that “annexes shall be restricted to procedural, scientific, technical and administrative matters”, 39 “the lines between the ‘technical’ and the ‘substantive’ are often fluid.” 40 Thus, where annexes and amendments thereto contain substantive matters, Parties may end up being bound by an obligation not in the text of the treaty itself, despite the fact that they did not expressly consent to such an obligation. 414.2 CBD COP Decisions After each meeting of the COP, “decisions” are issued addressing a variety of different subjects, ranging from amending procedural rules to guidelines related to conducting social and environmental impact statements. The CBD is more or less silent in regard to the legal weight of COP decisions. 42 Presumably the issuance of COP decisions falls 38 Only two protocols to the CBD have been adopted since the CBD entered into force. These are the Cartagena Protocol on Biosafety to the Convention on Biological Diversity and the Protocol On Access To Genetic Resources And The Fair And Equitable Sharing Of Benefits Arising From Their Utilization To The Convention On Biological Diversity. Harrop and Pritchard, at 476. 39 CBD Article 30(1). 40 Brunee, at 20. 41 See Brunee, at 20 (noting that under the Montreal Protocol, “additions to an annex can significantly increase the scope of the obligations contained in the protocol text itself”). 42 CBD Article 12 refers to “decisions of the Conference of the Parties taken in consequence of recommendations of the Subsidiary Body on Scientific, Technical and Technological Advice[.]”
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Analyzing The Binding Nature of COP Decisions ... - Natural Justice

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