Bad COPs? The (Ir)responsibility of Conferences of the Parties to Multilateral Environmental Agreements

Conferences of the Parties (COPs) to multilateral environmental agreements (MEAs) are autonomous institutional arrangements with an increasingly influential role in environmental norm, strategy, and policy setting, which should, in principle, be accompanied by a corresponding level of responsibility. However, a seldom-questioned assumption that decisions of COPs are inherently ‘green’ seems to have discouraged a scholarly discussion on the responsibility of these treaty bodies. Moreover, COPs are not typically considered as international organizations, despite showing numerous key characteristics in relation to their functions and mandate. As regards international organizations, it has been recognized that they have in the past made controversial decisions that led to undesirable outcomes, or even ‘internationally wrongful acts’. In response, international legal scholarship made efforts to develop adequate responsibility and accountability mechanisms, notably the 2011 Draft Articles on the Responsibility of International Organizations (DARIO) of the International Law Commission. However, little attention has been paid to the applicability of this emerging body of law to international environmental institutions, including COPs. The lack of clarity on the legal status and international responsibility of COPs leaves a significant gap in global environmental governance, especially considering the potentially harmful implications of their decisions for not only present (e.g. ocean carbon sequestration, use of biofuels), but also future activities (solar radiation management). This research goes beyond the conventional view of COPs and conceptualizes them as a potential source of environmental problems, whose decisions may not only help solve a problem, but also create new ones. Drawing on the emerging body of law on international organizations and an in-depth analysis on the evolution of COPs, we question what legal options can be envisaged to hold COPs responsible for their actions. Firstly, we argue that qualifying COPs as international organizations is a useful approach to ensure responsibility and accountability. This allows the use of a series of options designed for international organizations, including DARIO and other alternative solutions (e.g. global administrative law, constitutionalism, internal panels). Secondly, we put these options under scrutiny to assess their possibilities and limits in effectively addressing environmentally unsustainable actions of COPs. Lastly, we propose a series of recommendations for enhancing the applicability of the international responsibility regime to the environmental context. We anticipate our work to be a starting point for further reflections on possible institutional solutions to improve the overall sustainability and effectiveness of global environmental regimes.