COPs and their Disadvantages

Manage the mutual relationship by fostering institutional cooperation and coordination. Such cooperation could take place simply through information exchanges between treaty bodies, or in a more ambitious form comprising “joint planning of programmes or even the coordination of substantive decision-making or implementation activities.” It argues that this “soft” alternative also has its limitations, which can be explained by incongruent memberships and limited legal mandates. It appears that while the treaty bodies of the

UNFCCC and the Kyoto Protocol have been rather passive on the issue of the relationship with the biodiversity convention, the CBD COP has actively sought to manage the interactions between the regimes. Since the adoption of this decision, however, there have been no major efforts to manage interactions between the two treaties. The CBD parties, in contrast, have adopted various decisions on biodiversity and climate change. These decisions have been instrumental in highlighting biodiversity concerns in UNFCCC decisions but have not led to strong references to biodiversity in the climate regime’s decisions on forests. Although the institutional cooperation efforts to address the interactions between the climate and biodiversity regime are clearly intensifying, their effects are as of yet uncertain: at best, they can be seen as creating mutual awareness and building capacity at various levels; at worst, they can be viewed as an exercise in rhetoric. First, any effort by actors in one regime to influence rule development in another will be limited by the extent to which memberships are congruent. In this case, an important barrier is that the United States is a party to the UNFCCC, but not to the CBD. A broad mandate for the climate regime’s treaty or administrative bodies to cooperate with the CBD could lead to the perception that state sovereignty is eroded by “importing” concepts or rules from the CBD.304 A submission by the United States to the UNFCCC seems to confirm this fear. Commenting on the paper concerning options for enhanced cooperation prepared by the Joint Liaison Group in 2004, the United States notes that the Rio Conventions “have a distinct legal character, mandate and membership.”305 Although this limitation may not have to hold for the Kyoto Protocol-to which the United States is not a party after all-the secretariat’s mandate for cooperation is determined by the UNFCCC COP rather than the Kyoto Protocol’s COP/MOP. More generally, it shows that parties in the climate regime may not be ready to give biodiversity conservation a more prominent place at the expense of achieving cost-effective emission reductions.

Legal solutions

The notion of conflict resolution leads to the second explanation of why legal techniques are not necessarily the most appropriate means to manage regime interactions: it is not always desirable that one norm prevails over another. Yet such a view ignores the notion that different treaties may pursue similar or overlapping objectives. This is particularly pertinent in the field of international environmental law. In the context of the interactions between the climate and biodiversity regimes, this would mean that any satisfactory resolution needs to result in further greenhouse gas emission reductions, while simultaneously ensuring the conservation and sustainable use of biodiversity. My main point is that the focus on normative conflict has overshadowed the idea that norms may also reinforce each other. There is, for instance, a strong argument for using the concept of “sustainable development” as an overarching objective for international environmental law, and perhaps even international law more generally. The ILC Study Group report has not completely ignored this critique. In its discussion of conflict clauses, the report acknowledges that in some cases it is necessary to put in place a clause that “avoids a straightforward priority and instead seeks to coordinate the simultaneous application of the two treaties as far as possible”. This is in line with Chambers, who suggests that “[t]here is a need to create a positive rule of cooperation . . . which promotes treaty negotiators and treaty interpreters to maintain consistency between treaties.” too narrowly focused on conflicts. Conflict resolution rules resulting in a hierarchical relationship of norms may still be useful in conflicts between legal regimes with incompatible objectives, but management of interactions between environmental treaties more generally may be better achieved through conflict avoidance techniques, as well as institutional cooperation and coordination.

It concludes that neither legal nor political approaches are a panacea for interplay management. However, there is potential for the one approach to address the gaps in the other. Whereas international law does not address synergies between environmental treaties, strengthened political coordination and cooperation between them could. It is worth investigating further how international law and politics can work together in reaping synergies and addressing conflicts between multilateral regimes on climate change. In short, the very nature of climate change as an issue of sustainable development makes it almost impossible to capture all relevant aspects under a single legal regime, necessitating the consideration of interactions with other regimes. Similarly, it is not always necessary for two treaties to state their mutual supportiveness in order for States to implement them in a synergetic fashion.

The main questions for international lawyers are: 1) can a conflict be established?; and 2) if so, which treaty prevails? CONFLICT CLAUSES’ The starting point in addressing conflicts is examining whether States have sought to regulate these through so-called ‘conflict clauses’ (Pauwelyn 2003). The purpose of these clauses is to clarify the relation between treaties, thus preventing contradictions. This can be achieved, for example, by providing that existing treaties prevail or that a new agreement prevails over existing ones (Wolfrum and Matz 2003). It would not be advisable for the Paris agreement to rely on the adoption of conflict clauses due to their prioritising nature which doesn’t conform to scientific management. In contrast, the climate agreements contain several clauses that regulate their relation with other multilateral treaties. With regard to the Montreal Protocol, the UNFCCC and the Kyoto Protocol delimit their scope by only covering “greenhouse gases not controlled by the Montreal Protocol”. Thereby, the climate agreements express awareness of the substantive interlinkages between the problems of climate change and ozone layer depletion, as some ozone-depleting substances are also greenhouse gases. However, it does not in itself prevent or resolve conflicts.  Another clause is relevant for an issue that has garnered much attention, namely the use of carbon sinks in the Kyoto Protocol’s Clean Development Mechanism (CDM). Forestry projects are to a limited extent eligible for emission reduction credits under the CDM rules. However, it is feared that these rules do not ensure the protection of biodiversity and the prevention of land degradation, and could hence conflict with objectives and obligations of other environmental treaties Although this provision does not state which agreements need to be taken into account, it is reasonable to assume that given the role of forests and wetlands as sinks, the Convention on Biological Diversity (CBD), the UN Convention to Combat Desertification (UNCCD) and the Ramsar Convention on Wetlands are “relevant”. Additionally, the membership of these agreements should be taken into account: it is difficult to see how an agreement can be “relevant” for a Party that has not signed or ratified it. However, it is unclear what precisely is meant with “taking into account”, leaving open the question which treaty would prevail in case of a conflict. TREATY INTERPRETATION Treaty interpretation is an important method that can be applied by diplomats and dispute settlement bodies to harmonise two norms that seem to be in conflict. Art 31 VCLT provides gives basic interpretation rules, stipulating that a treaty’s ordinary meaning, its context, and its object and purpose should be taken into consideration. It also gives more dynamic interpretation rules, which determine that interpretation should take into account a) any subsequent agreement between the Parties on interpretation of the treaty, b) any subsequent practice in the application of the treaty, and c) “any relevant rules of international law applicable in the relations between the parties”. CONFLICT RESOLUTION RULES Article 30 VCLT provides rules on the resolution of conflicts. An apparent limitation of this provision is that it only applies to treaties relating to the same subject matter (Article 30.1 VCLT). Of course, application then depends on how one defines ‘subject matter’. On the one hand, if this is seen as broad as ‘protection of the environment’, Article 30 could theoretically apply to conflicts between the UNFCCC and CBD. The previous section has shown that international law does not particularly aim at enhancing synergies between treaties. Stokke (2001) points to the relevance of institutional coordination and cooperation in dealing with interactions. This could take place simply through information exchange between treaty bodies, or in a “more ambitious form of comprising joint planning of programmes or even the coordination of substantive decision-making or implementation activities” The climate regime has become increasingly involved in this form of ‘interplay management’.