Assemblies of Parties to Multilateral Treaties and Their Normative Authority

• Publication year: 2023

Assemblies of Parties to Multilateral Treaties and Their Normative Authority

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Ilias Bantekas^*

Table of Contents

I. Introduction.........................................................................................462

II. Political Normativity in International Law as a Basis of Understanding the Normative Dimension of Assemblies and Conferences..........................................................................467

III. Agreement-Making Powers of Assemblies..................................475

IV. Financing Capacity of Assemblies.................................................478

V. The CRPD COSP...................................................................................483

A. Legal Personality of the CRPD COSP..............................487
B. Organization of the COSP.................................................489

i. Sources........................................................................489
ii. Composition of the COSP...........................................491
iii. Meetings......................................................................493

C. Competence of the COSP...................................................494

VI. Conclusion.........................................................................................497

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Abstract

Assemblies of states parties to multilateral treaties are of a twofold nature: those that are active, entrepreneurial, and rally both the political and financial dimensions as well as the stakeholders of their underlying constitutive instrument and those that are content to merely serve as meeting mechanisms. Several assemblies have undertaken extensive funding campaigns, without which their mandate could not have been achieved. In turn, these progressive assemblies have made significant inroads in respect to transnational contracting and forging their limited international personality in such a way as to become credible entities in international relations. This model should be replicated in multilateral human rights treaties.

This Article suggests the emergence of international political normativity, whereby the functions of assemblies reflect normative outcomes despite the absence of normative powers. The moralistic underpinnings of the assemblies' functions have allowed them to adopt a range of measures that are susceptible to unopposed compliance. The Article demonstrates that not all assemblies venture or desire to undertake actions on the basis of international political normativity and are just as happy to serve as mere facilitators. This is the case of the assembly of the Disabilities Convention.

I. Introduction

The drafters of the 1969 Vienna Convention on the Law of Treaties (VCLT)¹ had not envisaged the existence of a mechanism, composed of the treaty's member states and endowed with some degree of personality, that would assume an active role in the treaty's life cycle.² The VCLT merely reflected customary international law and simply iterated the parties' inter se rights and obligations. There is very little room for collective action in the VCLT, other than the effects of subsequent practice by several states or its abandonment, among others.³ Although some treaties conceived of the notion of oversight mechanisms, such as administrative tribunals⁴ and (human rights)

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treaty bodies,⁵ there was no standardized process whereby states parties could discuss, amend, and ultimately strengthen the underlying treaty. This task was generally undertaken by the parliamentary entity of those treaties upon whom the status of intergovernmental organization (IGO) was conferred, as is the case with the General Assembly of the United Nations or the Committee of Ministers of the Council of Europe.⁶ For those multilateral treaties that were not organized under the IGO model, change and adaptation became difficult, and implementation was solely entrusted to member states' good faith. With the end of the Cold War, it became evident that in order for a multilateral treaty to be both meaningful and a "living instrument,"⁷ it was imperative that ample financing for its objectives be made available, including capacity building,⁸ as well as some degree of oversight for its implementation and constant adaptation. This led to a paradigmatic shift from the state-to-state approach in the VCLT, to now encompassing treaty-based bodies composed of all member states, endowed with administrative, fundraising, enforcement capacity, and occasionally capacity to set up international legal persons.⁹ While this model

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may not have been useful to those treaties predicated on an IGO, it was certainly a revolution for the many treaties and inter-government trust funds¹⁰ lacking IGO status. In many cases, these conferences of parties (COP), otherwise known as assemblies of parties (ASP), meetings of states parties (MOP), and conferences of states parties (COSP) became far more important and effective as opposed to parliamentary bodies of IGOs.¹¹ Some COP, such as that of the Global Crop Trust, assumed powers and functions typically conferred on intergovernmental organizations.¹²

The greatest advancements typically associated with the operations of COP are in the field of environmental law.¹³ These advancements in turn convinced treaty makers to establish similar entities in treaties dealing with international and transnational crimes, such as the ASP to the Rome Statute of the

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International Criminal Court (ICC)¹⁴ and its counterpart in the 2003 U.N. Convention against Corruption.¹⁵ The ASP to the ICC Statute not only gave impetus to a trust fund for victims,¹⁶ which itself was a radical notion in international criminal justice, but it was also responsible for formulating and adopting a subsequent provision on crimes against peace in the ICC Statute.¹⁷ This was something that seemed almost impossible a decade earlier. Moreover, the financing of humanitarian, health, educational, and environmental projects around the globe would have been seriously undermined without ASPs taking control of the process and working alongside IGOs and non-state actors.¹⁸ No doubt, the best-known COP is that administering the Paris Agreement.¹⁹ Its successive COP rounds not only made headlines but have been instrumental in their global inclusiveness and in taking hard actions against climate change.²⁰ The success of the Paris Agreement COP, which was

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achieved outside the U.N. framework, suggests that processes structured under a COP are viewed as flexible enough to garner the type of political consensus that is missing in other intergovernmental fora.

In some instances, a trust entity was set up to operate as both an ASP and as a financing mechanism. Prominent examples of financial mechanisms operating essentially as trust funds are those founded under Article 21 of the Convention on Biological Diversity (CBD) and Article 28 of its affiliated Cartagena Protocol on Biosafety,²¹ Article 21 of the International Convention to Combat Desertification (ICCD),²² and Article 11 of the Framework Convention on Climate Change (FCCC).²³ Exceptionally, in some cases, a trust fund established by a COP to implement the modalities of a particular financial mechanism may be required to work alongside an independent trustee that is responsible for implementing the decisions of the trust fund's board and of keeping and investing its assets. Thus, the Adaptation Fund set up by the COP to the FCCC in accordance with Article 12(8) of the Kyoto Protocol is invested with a trustee, the World Bank, which is to set up an additional mini trust fund in the form of an account in order to carry out the operations mandated by the Adaptation Fund.²⁴ With the exception of the ICCD (whose financial mechanism is the International Fund for Agricultural Development (IFAD)), the appointment of the Global Environmental Facility (GEF) as a funding mechanism to the aforementioned environmental trust funds was

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accomplished through the adoption of a decision by the COP,²⁵ followed thereafter by the conclusion of a memorandum of understanding (MoU).²⁶

This Article is organized as follows: Part II introduces the reader to the idea of international political normativity, which seeks to explain why the decisions of assemblies are generally adhered to by participants, despite the fact that assemblies do not always possess normative powers. Part III goes on to examine some of the functions of assemblies, starting with decision-making powers. Part IV looks at the perennial question of financing, which many assemblies are expected to undertake as part of ensuring the survival of their own mandates. Part V explores an assembly set up by a multilateral human rights treaty, namely the COSP to the U.N. Convention on the Rights of Persons with Disabilities (CRPD). The various subsections highlight the powers of this assembly, as well as its legal nature and personality, and ultimately demonstrate that it is a weak assembly that serves only as a facilitator and does not fall under the international political normativity paradigm.

II. Political Normativity in International Law as a Basis of Understanding the Normative Dimension of Assemblies and Conferences

The notion of international political normativity set forth in this Article requires some clarification and qualification for two reasons: first, because the term has already been coined in the political science domain and its

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scholarship²⁷ and second, because it has not before been employed in international legal parlance. It is instructive to provide a brief survey of how the term is employed by political scientists. Moralists contend that the underlying tools as well as the validation of a political process must be predicated on moral arguments and objectives. The outcome of such a process produces "political normativity" among those involved and the wider stakeholders.²⁸ Realists, on the other hand, argue...