Guest post: The challenge of consensus decision-making in UN climate negotiations

On the ultimate plenary assembly of the Dubai local weather convention, COP28 president Dr Sultan Al Jaber declared that the package deal of key selections taken in Dubai can be often called the “UAE consensus”. 

This threw a highlight on one of many quirks of the UN local weather negotiations: that COP selections are all the time adopted by consensus. 

Not like most different multilateral environmental conventions, there is no such thing as a majority voting rule, not even a “final resort” one, that may be invoked if there is no such thing as a consensus. 

This isn’t as a result of an uncommon selection by the local weather regime’s architects, however quite to the failure of the nations concerned to agree on how one can take selections, on the very begin of the regime within the early Nineties – and ever since. 

Consensus, thus, applies by default, quite than by design. 

However there may be extra to this story: disagreement over decision-making guidelines has its origins not in disputes amongst attorneys, however quite within the deliberate technique of obstructionist forces aiming to weaken the intergovernmental response to local weather change. 

How did this occur? And the way has consensus decision-making performed out over the a long time?

Guidelines of process

The worldwide local weather regime was established underneath the United Nations Framework Conference on Local weather Change (UNFCCC, or “Conference”), signed on the Rio Earth Summit in 1992.

This entered into drive in 1994 and – underneath Article 7.3 of the Conference – one of many duties for the very first “Convention of the Events” (COP1), held in Berlin in 1995, was to undertake a set of “guidelines of process” for itself.

Furthermore, in keeping with Article 7.2k of the Conference, these guidelines needed to be adopted by consensus.

Defining “guidelines of process” is normally comparatively simple for brand new regimes: the foundations set out quite normal necessities for issues resembling election of chairpersons, asking for the ground in a plenary assembly, circulation of written proposals, provision of interpretation into UN languages, elevating factors of order and so forth.

By way of decision-making, UN guidelines of process usually set up that selections needs to be taken by consensus, whereas defining a “final resort” voting majority that may be invoked in circumstances the place “all efforts have been exhausted and no consensus reached”. 

The draft guidelines of process have been ready by the local weather secretariat for governments to work on in preparation for COP1. They have been modelled on these of the 1987 Basel Conference on transboundary hazardous waste (the newest related treaty), and different precedents, such because the treaties on combating ozone depletion and the UN basic meeting (UNGA). 

Draft rule 42 included provision for a two-thirds “final resort” voting majority which, like the remainder of the draft guidelines of process, was unremarkable within the UN context. 

The identical “final resort” voting majority was in place – however by no means used – in the course of the negotiation of the Conference itself in 1991-1992, when negotiators had drawn on UNGA procedures to construction their work. 

Some political wranglings over the finer factors of the foundations of process have been to be anticipated. However what ought to have been a quite routine matter escalated into a significant political storm within the run-up to COP1, when members of the oil producers’ cartel the Group of the Petroleum Exporting Nations (OPEC) – principally Saudi Arabia and Kuwait, additionally Nigeria, Iran and others – started to argue that there needs to be no “final resort” voting rule in any respect. As an alternative they argued that substantive selections needs to be taken solely by consensus. 

In insisting on consensus as the premise for substantive selections, these oil exporting nations have been receiving recommendation from US-based lobbyists with hyperlinks to fossil gas pursuits, car firms and libertarian political forces, notably the now-disbanded International Local weather Coalition, together with the Local weather Council and its prime lawyer the late Don Pearlman. 

These lobbyists would brazenly cross notes to the Saudi or Kuwaiti delegations throughout plenary conferences, and even whisper of their ears (this was earlier than cellphones), prompting these delegates to lift objection after objection.

The interference from lobbyists grew to become so brazen, that the chair of the negotiations within the run-up to COP1 in Berlin – Argentinian diplomat Raul Estrada Oyuela – banned anybody with out a authorities badge from the plenary room flooring, as he defined to me later. This ruling remained in place till the arrival of cellphones rendered it irrelevant. 

Holding up rule 42

The disagreement over how basic decision-making ought to happen inside the COP course of was not the one hold-up to the last-resort voting rule (42). There have been wider disputes over local weather finance, with donor nations – particularly the US and France – insisting monetary selections needs to be taken by consensus, and creating nations wanting these to go to a vote. 

Muddying the waters additional, in a late transfer on the ultimate negotiating session earlier than COP1, OPEC proposed that the foundations of process enshrine a devoted seat for fossil gas dependent nations on the influential committee, the COP bureau. This may match the seat already granted to small island creating states on account of their vulnerability (rule 22). 

(This subject was, ultimately, resolved via a casual understanding that fossil gas dependent nations would all the time have a seat on the bureau, however via one in all their conventional regional teams (normally Asia), quite than devoted illustration.)

Recognising that the Conference by itself was too weak to resolve local weather change, negotiators included a clause within the treaty calling for a “evaluate” of the “adequacy” of developed nation commitments at COP 1 (Article 4.2(d)). As COP 1 opened, there was “basic settlement” that these commitments have been certainly “insufficient”, though no consensus over what needs to be executed about it.  However one of many fundamental choices on the desk was to launch a brand new spherical of negotiations on a stronger treaty, most certainly a protocol. 

The Alliance of Small Island States (AOSIS) and Germany had the truth is already tabled draft protocols, together with legally binding emission targets for developed nations. 

Confronted with the prospect {that a} new spherical of negotiations may end in considerably stronger curbs on emissions, oil exporting nations and their backers have been “decided” to form decision-making guidelines at COP1, guaranteeing that any protocol might solely be adopted by consensus. Writing on the time, attorneys Sebastian Oberthur and Hermann Ott defined that “by requiring a consensus for the adoption of protocols Saudi Arabia and Kuwait have been decided to protect their skill to dam any robust worldwide settlement”. 

An deadlock

Regardless of in depth diplomatic outreach within the run-up to Berlin, and the very best efforts of COP president Angela Merkel, the standoff over the “final resort” voting rule (42) couldn’t be resolved at COP1. 

Rising settlement that selections on monetary issues needs to be taken by a double majority of donor and recipient nations (a practical answer utilized in different intergovernmental boards) was blocked, as a result of the US and a few EU nations insisted on consensus for these points. 

In what has been described as a “tactical transfer”, provided that it had zero likelihood of being accepted, OPEC countered that each one selections – together with monetary ones – needs to be taken by a three-fourths majority vote. This was widespread with creating nations, however out of the query for donors, who would all the time be outvoted underneath such a rule. The consequence was an deadlock. 

Practically 30 years on, your entire guidelines of process stay in draft kind, though they’re utilized at every COP session, as in the event that they have been adopted. 

The exception is draft rule 42, which isn’t utilized. The 2 fundamental bracketed choices – which signify they haven’t been agreed by all events – for rule 42 are decision-making by consensus or consensus with a two-thirds “final resort” voting majority. 

These have been frozen in time for the previous three a long time, with options additionally for monetary issues. However as a result of no “final resort” voting rule has been agreed, the default is that selections are certainly taken by consensus.  

Consensus caveats

There’s a caveat to the consensus crucial. Some selections can, the truth is, be taken by a majority vote. 

The Conference, Kyoto Protocol and the Paris Settlement might be amended with a three-quarters majority vote. It’s because the Conference itself – articles 15 and 16 to be exact – quite than the unadopted guidelines of process, specifies this decision-making rule (and the opposite treaties apply the Conference’s guidelines). 

Some issues set out within the guidelines of process may also be settled by voting, together with challenges to a chair’s ruling on factors of order that may be settled by a easy majority vote (rule 34) and the election of officers to the COP or equal bureau (rule 22).

Some chairs have often threatened to take these procedural issues to the vote, however this has normally resulted in recalcitrant events backing down. 

A protracted dispute in Could 2012 over who ought to chair the advert hoc group on the Durban Platform (ADP – the physique that negotiated the Paris Settlement) for instance, provoked South African ambassador Nozipho Joyce Mxakato-Diseko to threaten to name a vote. An answer was ultimately discovered to nominate co-chairs, with out a vote.  

In a really small handful of circumstances, a procedural vote in keeping with rule 34 has been referred to as, within the type of a present of palms, however all the time in a subsidiary physique or advert hoc group, and by no means in a COP. 

Essentially the most high-profile case was in June 2013, throughout a prolonged debate over the SBI agenda. Confronted with a degree of order from the G77 and China, which referred to as for substantive work to proceed, chair Tomasz Chruszczow (Poland) dominated interventions ought to proceed. When the G77 and China challenged that ruling, chair Chruszczow referred to as for a vote.

There aren’t any formal data, and the SBI report omits any point out of it. However in keeping with each the Earth Negotiations Bulletin and the Third World Community (p.49), abstentions have been very widespread. The chair’s ruling stood and debate continued. It’s seemingly that many delegations merely didn’t know what to do, so uncommon is the incidence of voting. 

Paradoxically, the talk was a few proposed new agenda merchandise tabled by the Russian Federation, exactly on decision-making underneath the local weather change regime. 

There’s one event when delegates did formally vote within the COP course of, and on a call with main substantive implications, however regardless of any rule. 

This was at COP1 in Berlin, to resolve on the everlasting location of the secretariat. To beat political sensitivities raging across the guidelines of process on the time, the train was labelled an “casual confidential survey”, quite than a vote. 

Chair Estrada insisted it was “not a call or a vote”, only a approach of gauging preferences. Nevertheless it was to all intents and functions a secret poll – and it did result in a call. 

Three rounds of balloting eradicated the candidate cities of Montevideo in Uruguay, then Toronto in Canada, then Geneva in Switzerland, to go away Bonn in Germany victorious. This was, nonetheless, an remoted case that has not been repeated. 

An added complication to decision-making within the local weather regime is the absence of any operational definition of consensus. 

Based mostly on widespread apply elsewhere within the UN system, the time period is mostly taken to imply that there aren’t any acknowledged objections to a proposed resolution. This understanding is included within the 2017 UNFCCC handbook for presiding officers, and echoes the customized whereby presidents and chairs, upon adopting a call in plenary, bang their gavel and declare “I hear no objections, it’s so determined”. 

Nonetheless, there may be nonetheless ample room for interpretation. For instance, can one objecting nation actually veto a call that each one different 197 events need to see handed? This may equate consensus with unanimity, which many would contest. But when consensus doesn’t equal unanimity, the place does one draw the road? What if two nations are objecting, and even three? Does it matter who the nations are? 

The historical past of the local weather regime gives no easy solutions, besides to substantiate that consensus is a messy course of. 

Difficult consensus

Challenges to consensus have produced totally different outcomes at totally different key moments within the negotiations. 

The UNFCCC itself was adopted with a small handful of nations (primarily OPEC, plus Malaysia) waving their nation nameplates within the air to lift objections. So was the Berlin Mandate, which launched negotiations on the Kyoto Protocol at COP1. Reservations have been lodged to each paperwork. 

At COP15 in Copenhagen in 2009, six nations declared their categorical opposition to the Copenhagen Accord, triggering essentially the most dramatic plenary scenes ever seen within the local weather negotiations, and stopping the doc’s formal adoption. 

The next yr, in Cancún in Mexico, COP16 president Patricia Espinosa overruled Bolivia’s objection to the Cancún Agreements, declaring that “consensus doesn’t imply unanimity… one delegation doesn’t have the precise to veto”. Two years later, in Doha in Qatar, COP18 president Al-Attiyah gavelled via the Doha Modification to the Kyoto Protocol, ignoring an unmistakable request for the ground from Russia, supported by Belarus and Ukraine. In Paris in December 2015, COP21 president Laurent Fabius declared the Paris Settlement with out acknowledging Nicaragua’s request to talk.

At COP24 in Katowice in Poland in 2018, three nations (Russia, Saudi Arabia and the US) refused to “welcome” the IPCC 1.5C particular report, blocking the textual content. In Glasgow in 2021, language calling for the “phaseout” of coal was modified to “part down” after a last-minute plenary huddle in response to objections principally from China, India, and South Africa. This provoked an outcry  from Switzerland amongst others. 

These differing outcomes and interpretations counsel consensus decision-making is an artwork, not a science. If nothing else, its ambiguous definition and reliance on the actual interpretation adopted by the chair generates way more uncertainty and potential for procedural dispute than if a voting rule might be invoked. 

Unresolved objects

“Adoption of the foundations of process” – COP agenda sub-item 2(b) –  is now the longest standing unresolved merchandise on the COP agenda. Yearly, the presidency undertakes to carry consultations on it, however these have now grow to be nearly perfunctory, with little expectation of progress. 

There have often been extra critical strikes to interrupt the impasse. At COP2 in 1996 in Geneva, the Zimbabwean COP presidency convened consultations that received so far as drawing up a compilation of choices for rule 42. 

This compilation included options, for instance, a seven-eighths supermajority. However nations maintained their positions on the following COP3 in Kyoto, and the impasse continued. 

In Durban, South Africa at COP17 in 2011, Papua New Guinea and Mexico made a concerted effort to resolve the deadlock, within the wake of the highly-charged plenary dramas of Copenhagen and Cancún. 

Their proposal took a novel method: quite than making an attempt to undertake the foundations of process – which might require consensus – Papua New Guinea and Mexico proposed to amend the Conference itself, which might be executed by a three-quarters majority, to introduce a voting rule. 

The proposal had its challenges, notably that governments must individually ratify the modification, doubtlessly making a complicated mosaic of events and non-parties. Nevertheless it did current a doable approach ahead that attorneys and negotiators might work with. 

Nonetheless, regardless of two rounds of intensive consultations at COP11 and COP12, the proposal by no means mustered ample assist to progress. The agenda merchandise underneath which it was thought-about – “proposal from Papua New Guinea and Mexico to amend articles 7 and 18 of the Conference” – stays on the provisional agenda to this present day, though in abeyance (not mentioned) since 2018.  

There have been different makes an attempt at a broader dialogue of decision-making procedures. Following its overruling in Doha, the Russian Federation in 2013 insisted that procedural and authorized points regarding decision-making be topic to full-scale evaluate, prompting the agenda combat at SBI38 mentioned above. 

After paralysing the SBI for a complete session, the problem was ultimately added as a sub-item to the agenda of the following Warsaw COP19. However little has come of it. Consultations on the sub-item are held yearly however, like these on the adoption of the foundations of process, have grow to be purely a formality.

As mentioned above due to this fact, there are three doable avenues for normalising decision-making guidelines on the COP agenda: sub-item 2(b) on adoption of the foundations of process, the Papua New Guinea and Mexico proposal and the sub-item on decision-making underneath the UNFCCC course of.

None of those choices are topic to any critical consideration at current. 

The principle conclusion to be drawn from this, and from the acute reluctance of events to vote even on procedural issues, is that the consensus decision-making apply has, over time, grow to be deeply entrenched within the local weather regime.  

The influence of consensus

What has been the influence of the consensus crucial on the local weather regime? In the long run, the absence of a voting rule didn’t stop adoption of the important thing units of commitments that constructed on the UNFCCC: the Kyoto Protocol, the Paris Settlement and their operational rulebooks. 

Nonetheless, many would argue that consensus decision-making has led to slower, extra incremental progress than underneath a final resort voting rule. Nonetheless it’s outlined or interpreted, requiring consensus is a way more onerous bar to decision-making than a two-thirds, three-quarters and even seven-eighths voting majority can be. 

Through the years, numerous selections have been deserted, watered down or deferred to the following negotiating session due to a really small handful of objections.  

On the opening plenary of COP27 in Sharm El Sheikh in 2022, the consultant of Bangladesh argued that consensus was resulting in “lowest frequent denominator” outcomes. 

He added that “what we agree goes to be so weak, so ineffective, that it’s not going to be anyplace close to [meeting] the challenges of in the present day”. 

Within the run-up to COP28 in Dubai within the United Arab Emirates in 2023, former US vice-president Al Gore denounced the absence of a voting rule, and the higher leverage this offers to obstructionists, as “absurd, ridiculous and offensive”. 

The COP28 “UAE consensus” didn’t clearly name for the fossil gas phaseout wanted to restrict warming to 1.5C, which can pay testimony to the restrictions of consensus decision-making. 

That is particularly so if a really stringent interpretation of consensus is utilized, by which, in keeping with UNFCCC govt secretary Simon Steill, “all Events should agree on each phrase, each comma, each full cease”. 

With the entry into drive of the Paris Settlement and adoption of its rulebook, the function of the COP is arguably more and more shifting in the direction of “political signalling”: sending out high-level messages to financial and political decision-makers of every kind, on the course, ambition and tempo of worldwide decarbonisation. 

This underlines the necessity for COP selections which are robust, unequivocal and aligned with the science. As such, it raises questions in regards to the efficacy of consensus pushed decision-making, and whether or not a “final resort” voting rule needs to be adopted for the local weather change regime. 

The Mexico and Papua New Guinea proposal demonstrated that inventive authorized choices might be dropped at the desk. All that’s wanted – as ever within the local weather area – is political will.