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

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under the catchall provision in Article 23, which allows the CBD to “[c]onsider and undertake any additional action that may be required for the achievement of the purposes of this Convention[.]” 43Rule 40 of the CBD COP Rules of Procedure (“Rules of Procedure”) addresses decision-making on matters of substance and provides the following: [1. The Parties shall make every effort to reach agreement on all matters of substance by consensus. If all efforts to reach consensus have been exhausted and no agreement reached, the decision... shall, as a last resort, be taken by a two-‐thirds majority vote of the Parties present and voting, unless otherwise provided by the Convention... or the present rules of procedure...] 44Unlike provisions governing adoption of protocols and amendments to the CBD, reaching a decision under Rule 40 does not require ratification by Parties. It is also unclear under Rule 40 whether parties who were not present and voting or who voted against the decision are bound by it. 3.4.3 Legal Weight 45 of CBD COP Actions Under traditional treaty law analysis, the actions 46 of the COP which most closely approximate traditional treaty formation – adoption and ratification – will constitute Article 32(2) provides that “Decisions under any protocol shall be taken only by the Parties to the protocol concerned.” 43 Stan Stevens, the Treasurer for the Indigenous and Community Conserved Areas consortium, provides anecdotal evidence. At the GEF Council meetings with civil society in November 2011 he was told by a policy officer in GEF Secretariat that the GEF Council did not consider PoWPA to have the same weight as CoP decisions because it is “only an annex” to a CoP decision. Subsequently he was told that the GEF Council maintained that they did not need to include FPIC because “FPIC is only mentioned in PoWPA, and not in a CoP decision.” 44 Brackets in original. In a rather ironic twist, the entirety of Rule 40 is bracketed “due to the lack of consensus among the Parties concerning the majority required for decision-‐making on matters of substance.” CBD, Report of the Tenth Meeting of the COP to the CBD, 20 January 2011, at Paragraph 65. As of COP 10, “[t]he Conference of the Parties did not currently appear to be in a position to adopt those outstanding rules so the President suggested postponing discussion of the issue to the eleventh meeting of the Conference of the Parties.” Id. It is hoped that by COP 11, the COP will be able to finally reach a consensus on its rules for reaching a consensus. 45 The term “legal weight” is used here to refer to whether the CBD COP action is binding or non-‐binding.
hard law. Thus, amendments to the CBD, protocols, and amendments to protocols, which require express consent from Parties before they are bound, should constitute hard law. 47 Annexes and amendments thereto deviate from the traditional treaty-‐law formation in that they require opting out in order to avoid being bound. As set forth in Article 11 of the Vienna Convention, however, “[t]he consent of a State to be bound by a treaty may be expressed ... by any other means if so agreed.” It could be argued that the opt-‐out process in the CBD is another means by which Parties can express consent. Even if a literal interpretation of the term “express consent” is taken, Parties still have the opportunity to determine whether or not to be bound by an annex or amendment thereto. On the other hand, the legal weight of actions which take place outside of this context (such as certain COP Decisions) are “at best ambiguous.” 48 In regard to COP Decisions in particular, “they do not appear to be binding in a formal sense.” 49 According to Brunee, “[t]o the extent that parties understand some of the rules contained in the relevant decisions as ‘mandatory’ and agree to subject themselves to their terms, the distinction between COP decisions that are, technically speaking, legally binding and those that are not may well be more apparent than real.” 50 It is important to note that some commentators argue that traditional treaty analysis is inadequate to address the scope of COP decision-‐making. 51 Brunee “argue[s] for an interactional understanding of international law … [where] international law arises from a mutually generative process, [meaning that] … actors come to understand themselves and their interests in light of their interaction with others and in light of the norms that frame the interaction.” 52 The point here is that rather than focusing on whether or not a decision was made within the formal confines of traditional treaty law, decisions are analyzed according to general concepts of transparency, mutual understanding, and customary practice. 4.4 Other Issues 46 “Actions” encompasses all activities of the COP, including adoption of protocols and issuance of Decisions. 47 See Churchill and UlfsteinUlfstein, at 636 (noting that COP treaty amendment procedures “essentially reflect the general procedures for treaty amendment laid down in the Vienna Convention on the Law of Treaties, though in institutionalized and more streamlined form”). 48 Brunee, at 32. 49 Brunee, at 32. 50 Brunee, at 32-‐33. 51 Brunee, at 6. 52 Brunee, at 33 and 34.
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Analyzing The Binding Nature of COP Decisions ... - Natural Justice

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