The Rules of Procedure governing COPs

Since 1994, the world has witnessed 30 COP sessions that have negotiated and adopted decisions to enable climate action. Despite criticism of the legality and effectiveness of those decisions, COP negotiations remain a primary platform for promoting climate action and building global consensus on this crucial issue. For example, COP27 is remarkable for establishing the historic Loss and Damage Fund.

Under Rule 9 of the Draft Rules of Procedure, the Secretariat will finalise the provisional agenda in consultation with the President. The provisional agenda shall include items related to the implementation of the UNFCCC as mentioned in Article 7; items identified at a previous session for further discussion; items referred to in Rule 16 of the Draft Rules of Procedure; and items communicated to the Secretariat before the provisional agenda is circulated. With two exceptions, the same country holds the host government and the COP Presidency. Under Rule 23, the President is authorised to declare the opening and closing of the annual session, preside over meetings, and ensure the observance of procedural rules.

The Partnership Modalities between Australia and Türkiye

This unique presidential arrangement is set out in the COP31 Partnership Modalities. Under these Modalities, the Turkish Environment Minister, who will be nominated to serve as President-Designate at the commencement of the COP31 session, will oversee the procedural rules. The President-Designate announced the appointment of the Australian Minister for Climate and Energy as ‘President of Negotiations’ and delegated exclusive authority to lead negotiations. Both co-hosting countries will consult to ensure COP31 runs smoothly. Türkiye will enter into a Host Country Agreement to address logistical responsibilities. Australia will lead negotiations, including convening consultations and meetings to prepare negotiation-related communications; selecting ministerial and other co-facilitators to further discussions as required; and producing draft texts at COP31.

Prospects and challenges of such an unconventional partnership

In earlier instances, e.g. COP23 and COP25, a single country held the presidency. Therefore, COP31 co-hosting may challenge the application of existing procedural rules and the COP President’s authoritative functions, as it introduces a new parallel role, ‘President of Negotiations’. On the one hand, stewardship of the negotiations has been ‘exclusively’ delegated to Australia, while Türkiye’s role as President-Designate is to ensure compliance with the UNFCCC procedural rules, including agenda-setting and decision adoption.

Such an exclusive delegation might, to some extent, affect the powers usually entrusted to the COP President under the Draft Rules of Procedure. The key is to strike a balance between the two parallel Presidencies. Moreover, the partnership and sharing of power are subject to the qualifying phrase — ‘will consult each other’. However, official communications to date remain silent on the procedural aspects of such consultations/the dispute-resolving process.

This raises concerns about slowing the pace of negotiations, including agenda-setting or decision adoption. What will happen if they fail to reach an agreed decision on a particular agenda item? Will it be deferred to the next session, causing sheer disappointment, as happened with negotiations on long-term climate finance at COP15? Experts are also concerned about who will hold the gavel when the final text is adopted. Nonetheless, shared leadership could pave the way for future leadership from developing countries. The success of COP31 could shape the future of UN climate multilateralism, fostering trust and confidence among nations. However, its failure could lead to profound disappointment in addressing global crises.

In conclusion, the COP31 arrangement is a reality check on the future of multilateralism. Let’s see how it turns words into climate action, rather than offering consolation, as echoed at the COP30 closing session.

We are not concerned with a single violation – violations have always occurred – but with the way in which they are being framed and absorbed. Powerful states are no longer simply breaking rules and hoping nobody notices. They are increasingly offering legal reinterpretations of those rules, stretching concepts such as self-defence and necessity beyond recognition, with the apparent expectation that the international legal order will simply accommodate their preferred interpretations. This represents a different and more dangerous phenomenon than straightforward non-compliance. If a rule is openly breached, one can at least push back against it. But when a rule is subtly altered, matters become more complicated through a tacit institutionalisation of complicity, as even what can be said is constrained from the outset.

This two-part blog first explores two examples, relevant to the subject matter. The second part analyses these examples in light of the above.

The Gaza Question and the Limits of Legal Tolerance

Gaza has become the most visible stress test of international humanitarian law in a generation. Large-scale military operations conducted under the pretext of self-defence, resulting in significant civilian casualties, have given rise to serious allegations of violations of core principles of international humanitarian law, particularly proportionality and distinction. Indeed, as international law stipulates, proportionality must not be compromised even if the underlying cause is justified, nor may the principle of distinction be disregarded simply because warring parties use civilians as shields.

More concerning is the inability of the international community, including the UN, to respond consistently to these alleged violations, which is generating something more corrosive than impunity – it is generating a settled expectation of impunity. And that expectation, once established, effectively rewrites the content of the law.

Sovereignty as a Compromised Concept

Alongside the erosion of the jus ad bellum, something quieter but equally troubling is happening to sovereignty. Unlawful renditions, military operations on the territory of non-consenting states, and the growing tendency to treat other states’ sovereign decisions as mere inconvenient obstacles reflect a worldview in which sovereignty is a real constraint for weak states but a polite fiction for strong ones.

Double standards are not new – they have always existed – but what is striking now is the brazenness: there is barely any effort left to construct even a minimal legal justification. International lawyers are trained to look for opinio juris – the sense of legal obligation that distinguishes a binding norm from mere habit. When states cease to feel obliged to articulate why their conduct is lawful, we are witnessing the erosion of opinio juris in real time. This is a deeply serious development, as the binding force of customary international law depends upon it.

This is particularly worrisome when dealing with regimes accused of conduct that allegedly endangers international peace and security. In the relatively recent past, based on lessons drawn from post-Cold War military conflicts in places such as the Balkans and Sub-Saharan Africa, the international community developed a set of norms known as the “Responsibility to Protect” (R2P), aligned with the UN’s “Uniting for Peace” principle.

Coined at the 2005 UN World Summit, this principle established a legal framework -approved unanimously by UN members – comprising a three-stage strategy for intervention in states deemed responsible for endangering international peace and security or committing atrocity crimes. Despite institutional constraints arising from the UN Security Council’s voting system, this at least contributed to the development of opinio juris, providing a degree of legal justification and legitimacy for military operations affecting the territorial integrity and sovereignty of states.

Yet, against this background, recent developments in countries such as Venezuela and Iran -and even the aggressive rhetoric concerning the future of Greenland – should be regarded, at the very least, as serious setbacks to the current international legal system. This emerging form of interventionism carries a significant risk of establishing dangerous precedents for similar cases.

The Charter of the United Nations in Article 2(4) provides a clear prohibition against any threat or use of force against the territorial integrity or political independence of any state. Article 51 allows resort to force in defence “if an armed attack occurs” on its territory. The International Court of Justice clarified in the Nicaragua case that not every use of force rises to the level of an armed attack, although interpretive controversies over criteria for judging imminence, necessity, and proportionality remain numerous. In the Iran case, the US and Israel invoked Article 51 and argued that the airstrikes aimed to eliminate the Iranian threat posed by its nuclear program and missile capabilities, while over one hundred experts from international law societies (the American Society of International Law and International Law Association) maintain that there was no prior armed attack, and any pre-emptive actions would fail the strict imminence standard defined in the Caroline affair and other anticipatory defence cases. Without the authorization of the Security Council in accordance with Chapter VII of the Charter, the strikes would clearly violate the Charter prohibitions reiterated in its Preamble and Article 1.

This so-called ambiguity, more accurately understood as interpretive indeterminacy in the application of established jus ad bellum norms, directly infringes on human rights, notably the right to life, protected in Article 6 of the International Covenant on Civil and Political Rights. The UN Human Rights Committee explained in its General Comment No. 36 (paragraph 70) that any acts of aggression causing deprivation of lives violate this principle ipso facto since an unlawful resort to force makes killings of civilians arbitrary. Strikes in proximity to civilians, schools, and dual-use objects pose problems not only concerning jus in bello (law in war) but also regarding jus ad bellum (right to go to war).

The Three-Pillar Framework of R2P

The principle of R2P was formulated in Paragraphs 138–139 of the UN General Assembly Resolution adopted in 2005, aiming to provide an answer to atrocity events. The principle includes three pillars in which the first obligates states to protect their populations from mass atrocity crimes, namely genocides, war crimes, ethnic cleansing, and crimes against humanity. The second pillar involves international assistance rendered through peaceful means and capacity building. The third pillar permits the timely and decisive collective action, including the use of force, as an ultimate measure provided only under Chapter VII of the Charter and authorized by the UN Security Council. R2P was purposely formulated to prevent unilateral military interventions under the pretext of protection from mass atrocities while covering gaps left by the failures in Rwanda and Srebrenica. It creates no exceptions to Article 2(4). In a supposedly pre-emptive response, the US and Israel claimed to have acted almost exclusively from the perspective of Article 51, and 2025 Impact Report of Global Centre for the Responsibility to Protect rejected any notion of the R2P being used in justification of the attack.

The 2026 Iran conflict underscores how the Responsibility to Protect remains strictly limited by state sovereignty and UN Security Council veto politics, enabling powerful states to obstruct or selectively enforce intervention irrespective of humanitarian imperatives. Coupled with the interpretive flexibility of jus ad bellum, these structural limits risk eroding accountability and exacerbating civilian harm within the post-1945 international order. The example of the R2P in relation to Libya 2011 showed the dangers of expanding authorization for protection into regime changes, and Iran became another test for this doctrine.

The ambiguity of jus ad bellum principles in combination with the limitations of the R2P concept is detrimental to the post-1945 order as a whole since interpretive possibilities of powerful nations to reshape norms and increase accountability make civilians suffer and the post-conflict environment worse. In addition, in cases involving R2P, it becomes increasingly important to avoid misinterpretation and violation of the prohibition against aggression while addressing atrocity events.

Due diligence in international human rights law refers to the proactive obligation of states to take reasonable steps to prevent, investigate, punish, and remedy human rights violations – including those arising from the state’s own systems or through third parties acting under its authority. In the context of government-deployed AI, this encompasses identifying foreseeable rights risks prior to deployment, building institutional capacity to monitor algorithmic outcomes, and ensuring accessible mechanisms for remedy. The concept originates in Velásquez Rodríguez v Honduras (IACtHR, 1988) and has since been developed through subsequent UN treaty body jurisprudence and scholarly development.

Under international human rights law, states have a duty to respect, protect and fulfil the rights enshrined in treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These obligations are not passive: they require states to take reasonable measures to prevent foreseeable harm to rights holders [8]. This analysis draws in particular on three soft law instruments: the UN Guiding Principles on Business and Human Rights (2011); the UNESCO Recommendation on the Ethics of Artificial Intelligence (2021); and the Council of Europe Framework Convention on Artificial Intelligence and Human Rights (2024). While not binding per se, these instruments provide authoritative interpretive guidance on how existing treaty obligations apply in algorithmic governance contexts.

Under established international human rights law, states bear an affirmative obligation to assess human rights impacts of their actions and adopt measures to address risks. These obligations persist regardless of whether the state develops the technology itself or relies on private vendors. Responsibility cannot be deferred on the basis of third-party involvement – a robust due diligence framework must be in place. More specifically, the obligations derive from: (1) Article 2(1) ICCPR – the general obligation to respect and ensure rights without discrimination; (2) Article 2(1) ICESCR – the obligation to take progressive steps toward full realization of rights; and (3) Principle 1 of the UN Guiding Principles on Business and Human Rights, which affirms that states must protect against human rights abuses by third parties, including private vendors, operating within their jurisdiction.

AI systems pose distinctive challenges for due diligence precisely because they are often non-transparent and adaptive. Traditional administrative instruments can be evaluated against statutory criteria. AI models, by contrast, can change behaviour based on data inputs. These features do not exempt states from their duties; on the contrary, the complexity of the system increases the diligence required. If a state deploys an algorithmic eligibility tool without the capacity to assess how it functions, it places itself at risk of violating core human rights obligations.

Consider the obligation to guard against discrimination. Article 2(1) of the ICCPR requires states to ensure that rights are recognized and respected without distinction of any kind. If a government uses an automated risk assessment tool that systematically biases outcomes against a protected group — and lacks the institutional capacity to analyse or mitigate that bias — it becomes difficult to argue that the state has taken reasonable measures to prevent discriminatory outcomes. The foreseeability of such harm is increasingly documented in academic literature and technical studies, yet states lacking technical oversight networks remain ill-equipped to meet their due diligence obligations.

Similarly, the right to effective remedy — a central component of international human rights law — imposes procedural obligations. Article 2(3) of the ICCPR requires states to ensure that anyone whose rights are violated has access to an effective remedy through competent judicial, administrative or legislative mechanisms. When an AI system produces an adverse decision, due diligence requires that there be mechanisms to challenge that decision and correct errors. Without institutional capacity to audit, review and correct algorithmic outputs, effective remedies remain theoretical.

Crucially, the standard of due diligence is measured by reasonableness, not convenience. States are judged against the backdrop of what is feasible to prevent foreseeable human rights harms. Where a technology is integral to public administration and its risks to human rights are documented, failing to establish oversight mechanisms, transparency requirements or accessible grievance processes raises serious questions under the state’s existing obligations. The fact that AI systems are complex does not diminish the obligation — if anything, it heightens the expectation that states will invest in capacity to govern their use responsibly.

From an independent legal analysis perspective, due diligence provides a familiar legal lens through which to assess the human rights implications of government-deployed AI systems. While soft law instruments do not themselves create new rights, they interpret existing obligations in contemporary settings and are relevant to assessing due diligence. States that deploy AI without such frameworks to monitor and mitigate rights impacts risk falling short of their binding international duties.

Definitions in international human rights law

To establish any definition in international human rights law, we would first go to treaty texts. And, indeed, some important human rights concepts are defined in these. For example, Article 1 of the Convention on the Rights of the Child (CRC) defines a child. Any reference to this definition would say, ‘Under the CRC, a child is defined as anyone under the age of 18’.

UN human rights treaty bodies in their general comments or case law can also provide definitions, so can UN General Assembly declarations. For example, the Committee on the Elimination of Discrimination against Women defined ‘violence against women’ in its General Recommendation 19 and ‘gender-based violence against women’ in its General Recommendation 35. The definitions provided by the UN human rights treaty bodies are not expressly binding, but they are generally treated as authoritative interpretations of terms found in the treaties because they are provided by organs that have the mandate to interpret and apply these treaties. Even then, international human rights lawyers would say, ‘The CEDAW Committee in its General Comment 35 defines gender-based violence against women as…’.

Others can, of course, also come up with definitions. These definitions, however, can only be attributed to the authors.  For example, the UN Special Rapporteur on the Human Rights of Migrants provided a helpful definition of ‘pushbacks‘. This has been subsequently cited and used by many others, see here, here and here – but as his definition.

There is no definition of a ‘mother’ in international human rights law

Not one international human rights treaty defines a mother.

The “Women’s Constitution”, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), does not even mention the word ‘mother’. Neither does the latest thematic treaty, the Convention on the Rights of Persons with Disabilities (CRPD). Article 16 of the CEDAW explicitly protects women’s equal right to the guardianship, wardship, trusteeship and adoption of children, clearly showing that it does not tie motherhood to giving birth to a child.

The only UN human rights treaty that mentions mothers is the International Covenant on Economic, Social and Cultural Rights (ICESCR) under Article 10(2). This provision states that ‘special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.’

The provision obviously does not define a mother. Nor does it exclude mothers who have not given birth to their children.

So, where, in international human rights law, does this definition on the UN website come from?

One document offers the identical definition. This was provided by the same UN Special Rapporteur on Violence against Women herself in her own report to the UN Human Rights Council from July 2025.  This report then makes a reference to another report issued by the same rapporteur, already the subject of criticism on this Blog, as well as to Article 10(2) of the ICESCR.

Gender-based violence against women has been a burning issue across time and space. Its recognition has been a generational fight under international human rights law. Violence against mothers, and how harmful gender stereotypes about ‘real’ ‘or ‘good mothers’, exacerbate such violence and is fully worthy of a UN study.

None of this work, however, can take place by allowing a glaringly legally incorrect definition of a mother on the UN human rights website. This definition from nowhere serves only to exclude some mothers from its scope.

The rule of law as defined by A.V Dicey refers to supremacy of the law as opposed to arbitrary exercise of powers, equality of all men before the law, and protection of individual human rights of people (Cf Lord Bingham, Joseph Raz and Brian Tamanaha). Legal instruments have long been adopted to  provide frameworks for protection of the rule of law such as the 1215 Magna Carta which introduced the right to a fair trial, protection from arbitrary detention, and the requirement that laws must be applied equally, the writ of habeas corpus securing the presence in court of the defendant or criminal suspect, and the Constitution of the United States of America in operation since 1789, a historical turning point in the development of the rule of law where it sought to create a strong central government whilst maintaining an individual’s autonomy. This later led to the American Declaration of Human Rights and impacted the adoption of the 1789 French Declaration of Man and the Citizen. Globally, there is the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, which enshrines the rule of law in the international law sphere.  However, with the increasing use of AI in decision making, questions must be asked about how it affects the operation of concepts associated with the rule of law, such as transparency, fairness, and explainability, as this technology is no longer a figment of imagination.

Whilst AI plays a key role in development, its operationalisation should be hinged within the constraints of the rule of law and protection of human rights and values. Debates on AI regulation often do not take into account that AI itself has regulatory effects on the legal system which could potentially endanger the adherence to the rule of law in democratic states. The infrequency of discussions between the intersection of technology and rule of law confirm that whilst AI primarily embraces globalisation, the rule of law, for the most part, is still primarily confined to national borders. Thus, there is need for international collaboration on setting legal and regulatory frameworks to improve transparency and fairness of decisions made by AI.  As of 2023, an AI index analysis of legislative records of 127 countries shows that the number of bills containing ‘artificial intelligence’ that were passed into law grew from just 1 in 2016 to 37 in 2022. An analysis of the parliamentary records on AI in 81 countries likewise shows that mentions of AI in global legislative proceedings have increased nearly 6.5 times since 2016.

Recent developments and global initiatives that have been seen as most influential and well-known include Council of Europe’s Framework on AI, which is the first international legal instrument on AI focusing on alignment with the rule of law, and UNESCO’s G7 tool kit on AI and rule of law. Regionally, the EU Artificial Intelligence Act 2024 focuses on risk levels of AI to ensure transparency and accountability. In the US, a proposed 10-year moratorium on state level AI regulations introduced by the House Energy and Commerce Committee in May 2025, has been met with opposition from bipartisan groups and states that have regulated high-risk uses of the technology, arguing that the measure will pre-empt AI laws and regulations passed recently in dozens of states. The (Data Use and Access) Bill which is at the reporting stage in the United Kingdom’s House of Commons has raised concerns on the narrowed scope of Article 22 under the UK General Data Protection Regulation which could allow more significant AI decisions without meaningful human involvement.

By emphasising shared global responsibility, legal and regulatory frameworks can help mitigate the risks of automation bias and preserve the rule of law.  AI must operate within a clear legal framework and remain subject to judicial oversight to ensure that the rule of law is upheld.

Indigenous People’s Role in Shaping the World

Indigenous people, who represent about 6.2% of our population, protect 80% of the world’s biodiversity, which is far more than designated protected and conservation areas. Their traditional knowledge has preserved ecosystems for centuries. However, rising sea levels, deforestation, and resource extraction threaten their lands, livelihoods, and cultures. Despite international frameworks such as the United Nations Declaration on the Rights of Indigenous Peoples, Indigenous lands are often exploited without consultation. As one of the world’s most marginalized groups, Indigenous peoples face poverty, landlessness, and internal displacement, struggling to maintain their way of life and identity.

The Gendered Impact of Climate Change

Climate change disproportionately impacts women, particularly Indigenous women, who are often the primary caregivers and providers for their communities. These women are responsible for securing food, water, and medicine, which are becoming increasingly scarce due to environmental degradation. Extreme weather events and resource shortages force women to travel farther for essentials, exposing them to increased risks of violence, exploitation, and human trafficking. In some areas, economic hardship following climate events has led to an increase in child marriages as families struggle to cope.

Indigenous women also face greater health challenges. Research indicates that rising temperatures contribute to pregnancy complications, while climate-related disasters disrupt access to reproductive healthcare. For example, following Hurricanes Eta and Iota in Honduras, over 180,000 women lost access to essential family planning resources.

The Role of Indigenous People in Fighting Climate Change

Despite these challenges, Indigenous women remain essential to climate action. Their deep connection to nature makes them invaluable in conservation efforts, sustainable agriculture, and the protection of biodiversity. They hold ancestral knowledge about medicinal plants from their areas, water preservation, and farming techniques, that have sustained their communities for generations.

However, their contributions are often overlooked in decision-making spaces. Women, but most particularly Indigenous women, are underrepresented in climate negotiations and policy-making. While they are leaders in their own communities, they are often overlooked on the national or international scene.

Climate Justice: How International Law Is Failing Indigenous Communities and Women

International law protects Indigenous peoples’ rights, however, their recognition is often challenged. Many Indigenous people live in remote areas with little access to legal resources, making it difficult to defend their land rights. Language barriers, discrimination, and a lack of political representation only isolate them from justice.

Even though environmental injustices are internationally recognized, enforcement remains weak. For example, six youth activists sued 33 European countries for failing to act on climate change. While this case gained global attention, Indigenous climate cases rarely receive the same recognition. However, landmark cases such as the the U´wa community´s battle against the oil companies demonstrate the growing role of Indigenous litigants in climate justice.

While such efforts are commendable, more litigation is needed to ensure Indigenous voices are heard and that legal systems uphold their environmental rights. Stronger enforcement mechanisms are needed as Indigenous communities continue to face land grabs, environmental destruction, and human rights violations.

Conclusion: The Path Forward

Nancy Fraser is pioneering in defining climate justice, arguing that it relies on the recognition and respect of diverse identities and knowledge; the redistribution of resources; and the meaningful participation of women and marginalized groups in decision-making. Climate change requires new forms of justice, as our current legal system has failed to prevent global warming and states continue to disregard international agreements. Distributive justice and procedural justice are necessary. However, misrepresentation remains a barrier. Political structures prevent directly affected groups from obtaining equitable representation in decision-making processes. Despite women’s significant contribution as leaders, activists, or scholars, they represent only 15% of environmental ministers, limiting the implementation of effective climate strategies. With just over 4 years to limit global warming to +1.5°C, diverse perspectives are needed to address this multifaceted emergency. Gender action has been integrated into the Rio conventions, but remains underdeveloped in climate governance.

True climate reparation requires a transformative framework centered around systemic change, trust, and cooperation. Climate justice is not attainable within existing colonial political systems. It can only be achieved through reforms in governance and constitutional arrangements to re-establish Indigenous natural laws.