Introduction
The sixteenth meeting of the Conference of the Parties (COP) to the Convention on Biological Diversity (CBD) finished last week in Colombia, kicking off the 2024 COP season. A large part of the international legal community turned its attention to the discussions held in Cali, and will now focus on the upcoming debates in the governing bodies of the United Nations Framework Convention on Climate Change (UNFCCC) and the United Nations Convention to Combat Desertification (UNCCD). However, limiting the relevance of COPs to their activities during this one part of the year would be seriously misleading, not in the least because it discounts COPs taking place year-round (CMS COP14 was in February), but also reduces COPs to being relevant only to global environmental challenges (a different approach is suggested here).
This is in stark contrast with reality, as evidenced by draft versions of the WHO Pandemic Agreement and the legally binding instrument on plastic pollution delimiting COPs to be in charge of leading the future direction of those treaties. Furthermore, the recently adopted Biodiversity Beyond National Jurisdiction Agreement (BBNJ Agreement) establishes a COP with substantive powers, as we detail below. Finally, and pressingly, international tribunals are carefully examining the role of COPs and taking into consideration their resolutions in their decisions. The recent ITLOS advisory opinion on climate change (paras. 69, 77, 216) is the latest addition to this trend.
In this context, our contention is that COPs are moving from the periphery to the center stage of international law. Furthermore, as the influence and powers of COPs expand, important questions arise regarding the status of these bodies in general international law. This goes beyond the existing scholarly engagement with COPs and involves assessing these bodies as potential international legal actors with agency and responsibility.
In this post, we attempt to sketch these developments hoping to initiate a broader conversation on this topic. Section II provides a brief overview of the questions scholars have traditionally addressed about COPs. Section III introduces emerging questions about the legal personality of these bodies and implications for general international law doctrine. Section IV concludes, underlining the opportunity that the upcoming COPs provide to monitor the ways in which these bodies challenge current international legal categories.
Traditional questions about COPs
Academics mostly engage with the work of COPs when they discuss substantive issues about a treaty that establishes one of these bodies. However, there is also a body of scholarship that focuses on COPs and their activities as an object of study in their own right.
This COP-oriented scholarship has primarily addressed two questions. The first considers the nature of these bodies. Robin R. Churchill and Geir Ulfstein famously argued that COPs constituted ‘autonomous institutional arrangements’. They claimed that COPs did not fit within the traditional categories of international organizations or diplomatic conferences, but ultimately seemed to come closer to the former. This framing was extremely persuasive, as most academics who joined this debate based their arguments on whether COPs could be considered as international organizations.
The second question which has intrigued several scholars writing on COPs is the legal status – binding or non binding – of their consensus-based resolutions. This is linked to the procedures employed by COPs to adopt their decisions and the way in which these processes affect state-consent as the cornerstone of international law-making.
On the legal status of COP decisions, some voices called for the abandonment of the binding versus non-binding dichotomy to focus on other factors instead. For example, Jutta Brunnée argued in favour of a de facto law status for some COP resolutions based on her interactional law-making approach. Similarly, Anecoos Wiersema emphasized the interpretative role that COP resolutions play, arguing that the weight of COP decisions can only be assessed in connection to the treaty provisions they engage with.
Most of the literature centering COPs revolves around these two issues: nature and legal status of COP decisions. In the following section, we explore and propose emerging questions based on recent international developments.
Emerging Questions on the Legal Personality of COPs
The growing autonomy and influence of COPs in shaping international environmental policy raises the possibility that they may be evolving into more distinct subjects of international law, challenging traditional notions of international legal personality. The UNFCCC COP, for instance, demonstrated a degree of autonomy that goes beyond mere treaty implementation with the adoption of the Paris Agreement in 2015. This level of norm-creation suggests agency typically associated with entities possessing legal personality. Similarly, the CBD COP has shown an expanding role, as evidenced by the adoption of the Kunming-Montreal Global Biodiversity Framework at COP15 in 2022, which demonstrates the COP’s capacity to set global targets and shape international environmental policy. The implications of recognizing COPs as having some form of legal personality would be profound. This recognition could grant COPs greater independence in international relations, potentially allowing them to participate in international dispute resolution or even bear responsibility for their actions.
The scope of COP authority is another critical area of inquiry, particularly as new treaties like the BBNJ Agreement grant expansive powers to their respective COPs. The BBNJ Agreement provides a striking example of enhanced COP authority, empowering its COP to decide on the establishment of Marine Protected Areas (MPAs) through a majority vote if consensus cannot be reached, with decisions binding on all states parties subject to limited opt-out provisions (Article 23). The ‘opting-out’ method is present in previous environmental treaties but the establishment of limits is a novelty that marks a departure from the conventional understanding of treaty bodies as primarily facilitative or advisory in nature. Additionally, the BBNJ Agreement explicitly grants its COP the power to request Advisory Opinions from ITLOS (Article 47). The power to request Advisory Opinions places the COP in a leading position to influence the interpretation and development of international law relating to the marine environment by drafting the questions put forth to the ITLOS, providing further evidence of their enlarged scope of authority.
The question of whether COPs possess rights under international law is also closely linked to the issue of legal personality. While some agreements, like the BBNJ, seem to grant their COPs certain rights, it remains unclear whether these constitute true “rights” in the international legal sense or are merely delegated powers from member states. If we accept that COPs can possess rights, we must also consider their corresponding duties and obligations. These could be owed to the parent treaty, member states, or even the broader international community. For example, the UNCCD COP might be seen as having a duty to promote synergies with other Rio Conventions (CBD and UNFCCC) in addressing land degradation and climate change linkages. The Rio Trio appears to be furthering this presumption. The recognition of COP rights and duties would have significant implications for the theory of international law, potentially creating new categories of rights-holders and duty-bearers in the international legal system.
Finally, as COPs assume greater authority and influence, questions of accountability and responsibility become increasingly relevant. The mechanisms for COP accountability are not well-defined in international law. The potential for judicial review of COP decisions, given their global impact, remains an open question. The perceived “failure” of UNFCCC COPs to achieve substantial progress in certain years (for example, during the unfortunate circumstances during UNFCCC COP15 in Copenhagen) raises questions about which obligations, if any, were breached, and who should bear responsibility. Should this lie with the COP Presidency, the member states collectively, or the COP as a distinct entity? Furthermore, as COPs increasingly engage with non-state actors and the private sector, questions arise about their accountability to broader stakeholders beyond member states. This expanding sphere of influence brings with it new challenges in defining and implementing appropriate accountability mechanisms.
Conclusions
The evolving role of Conferences of the Parties (COPs) in international law merits close attention from scholars, practitioners, and policymakers alike. As we witness the 2024 COPs for the CBD, UNFCCC and UNCCD, observers should keep an eye on their substantive outcomes, but also on how these bodies continue to challenge traditional notions of international legal personality, rights, and responsibilities.
This evolution may necessitate a reevaluation of fundamental principles in international law, moving beyond the state-centric model to accommodate the growing agency of COPs. As global challenges grow more complex and urgent, and States agree to have more axes/centres of decision-making to combat these challenges, the 2024 COPs may well serve as pivotal moments in the continuing evolution of these influential bodies, making them essential focal points for anyone interested in the intersection of international legal theory and global governance.
