Consent to be Bound International Environmental law and Legitimacy Malgosia Fitzmaurice
Abstract
I will reflect in my presentation on a changing role of consent to be bound international law (the law of treaties) brought about by the robust development of international environmental law. Consent to be bound has always played a central role in the law of treaties, which codified the classical means of consent to be bound in Article 11 of the 1969 Vienna
Convention on the Law of Treaties, i.e. Article 11 VCLT ‘signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession.
The advent of Multilateral Environmental Agreements (MEAs) has eroded to a certain extent this ‘sacred’ institution of international law. The far reaching law-making role of
Conferences (Meetings) of the Parties, the highest organ of MEAs, have led some scholars to name them ‘Autonomous institutional arrangements’. The precursor of new ways of consent to be bound is a procedure of so called ‘tacit consent ‘ or ‘opting out. The law-making role of COPS/MOPS is so enhanced as they are authorised to fill in lacunae in MEAs, define and precise certain provisions, which may result in new international obligations of states-parties.
The other way such enhanced consent to be bound is implemented through the establishment of non-compliance procedures, which are set out in detail and activated by COPs/MOPs.
Such procedures, at least in their original form, have provided for at times very far reaching consequences for the parties of MEAs, which were in non-compliance, including the suspension in rights of a party to a treaty.
This ‘new ‘ ways of consent to be bound have generated a robust debate on the legitimacy of such methods and the role of COPs/MOPs.
Malgosia Fitzmaurice
Professor Malgosia Fitzmaurice holds a chair of public international law at the Department of Law, Queen Mary University of London (QMUL). She specialises in international
environmental law; the law of treaties; and indigenous peoples. She publishes widely on these subjects. for a full list of publications. Since 2019 she is an associate member of the L’Institut de Droit International.
Her latest publications are a monograph Whaling and International Law, Cambridge
University Press, 2015, (co-edited with Dai Tamada) Whaling in Antarctic: Significance and Implications of the ICJ Judgment, Brill/ Nijhoff, 2016 and 2020 Treaties in Motion The Evolution of Treaties from Formation to Termination (with Panos Merkours) Cambridge University Press,
She has delivered a lecture on the International Protection of the Environment at the The Hague Academy of International Law. Professor Fitzmaurice was invited as a Visiting Professor to and lectured at various universities, such Berkeley Law School; University of Kobe; Panthéon-Sorbonne (Paris I).
