Dealing with “Consensus” at the UN Climate Talks

Leonardo Massai 

The slow pace of negotiations under the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement is something both insiders and outsiders to this process are somehow familiar with. For the past 25 years since its entry into force, the UNFCCC has in fact failed to adopt its rules of procedure, including decision-making, as mandated by Article 7.3 of the Convention. The Rules of Procedure drafted in 1996[1] have never been adopted by the Conference of the Parties (COP) because of divergent views on Rule 42, which provides for two different options on decision-making under the Convention. While option “A” introduces the possibility of adopting decisions by the use of a two-thirds majority vote of Parties present and voting in the event every effort to reach consensus is exhausted, option “B” only refers to consensus with the exception of decisions on financial matters.

Therefore, since COP1 in 1995, the adoption of the Rules of Procedure is among the first items on the COP agenda and it is common practice for the COP, in agreement with alla Parties at the opening plenary of each session, to apply the ROP with the exception of Rule 42.

While the adoption of the Rules of Procedure remains formally an agenda item of the COP, in practice there is no debate since Parties still have very divergent views on the modality of taking decisions.

As illustrated by Yamin and Depledge[2] and Vihma[3], the result of this legal vacuum is that all decisions adopted by the COP, and consequently by the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP) and the Paris Agreement (CMA), have been taken applying the practice of “consensus” since its first session in 1995.

Huddle at UNFCCC COP19 (2013)

Consensus is not clearly defined by international law. Consensus is a “procedure whereby a conference takes a decision in the absence of a vote”. The COP (and CMP and CMA) President decides whether consensus exists in the light of the views expressed by the Parties[4]. The general understanding is that such procedure requires no Parties to disagree. However, in the recent past the COP has experienced some cases when decisions have been adopted even with a clear and express objection by a Party. This may suggest that, ultimately, it is for the COP President to assess and decide on a case-by-case basis whether there is “consensus” in the room.

In particular, it is worth mentioning a few examples from the past experience of the COP. First of all, the Copenhagen Summit (COP15) and the disagreement over the Copenhagen Accord in December 2009 that remains probably the lowest point in the history of climate diplomacy. In the early morning of Saturday 19 December 2009, COP15 and CMP5 failed to agree on the adoption of the Copenhagen Accord as negotiated and finalized by a selected and representative group of world leaders (mainly at the head-of-state level).  COP15 and CMP5 did not find consensus on the Copenhagen Accord because of the explicit and open objection of a few countries, including Tuvalu, Venezuela, Nicaragua, Cuba, Sudan. Therefore, in line with established practice, notwithstanding a few procedural errors in the final plenary from the COP President Lars L. Rasmussen, the Copenhagen Accord was not adopted by COP15 and the text of Decision 1/CP.15 refers merely to the COP taking note of the Accord.

With the failure of COP15 still in the minds of all climate negotiators, COP16 in Cancun was the first COP where the importance of some clarity on the issue of consensus was brought to attention to the world. In Cancun, COP President Patricia Espinosa did rule on the adoption of the Cancun Agreements, a full package of COP decisions formally introducing the Copenhagen Accord into the UNFCCC, although the delegation of Bolivia expressly objected to this decision during the final plenary. For the first time in the COP history, a COP decision was adopted despite the open and clear objection of a Party. On this issue, it is important to recall paragraph 48 of the COP16 Report which reads as follows[5]:

48. A representative of the Plurinational State of Bolivia stated that the delegation of the Plurinational State of Bolivia was opposed to the approval of the draft decision and requested that the President respect the formal mechanisms for agreements and consensus as employed within the United Nations. The President ruled that the position of the Plurinational State of Bolivia would be fully reflected in the records of the conference and requested the delegation to enable the conference to proceed and complete its work. Following statements made by two Parties, including a second intervention from the representative of the Plurinational State of Bolivia, reiterating his position, the President declared the decision adopted.

Something similar happened in 2012, when shortly before the conclusion of COP18 and CMP8 in Doha, Qatar, the COP/CMP President Abdullah bin Hamad Al-Attiyah decided to break the 24-hour long plenary by adopting all decisions one after the other, clearly ignoring the opposition by the Russian Federation who had stepped in and walked all the way up to the podium to express his disappointment for not being consulted over a text under discussion[6]. 

Delegate from the Russian Federation facing the podium of the COP18 Presidency, Doha (2012)

From the CMP8 Report[7]:

42. A representative of the Russian Federation raised issues of procedure concerning the adoption of the decision contained in document FCCC/KP/CMP/2012/L.9. Additionally, the representative of the Russian Federation made an intervention regarding procedural issues and the substantive content of the text of the decision contained in document FCCC/KP/CMP/2012/L.9. The representative of the Russian Federation requested that the intervention, in both its oral and written form, be reflected in the record of the proceedings of the session. The President noted that the intervention would be reflected in the report on the session, as requested.

In particular, the intervention of the Russian Federation stated that they were “categorically in disagreement with the outcome of the plenary at the final stage of this conference and the procedural errors that have been made by the Presidency of Qatar in the adoption of legally important decisions, causing to question the legitimacy of these decisions, and will have the most serious consequences for the national ratification”.

For the second time, after Copenhagen, a decision of the COP/CMP was adopted despite the objection of a Party in the final plenary. What happened in Doha did affect the functioning of the whole UNFCCC process from then onwards. The Bonn Climate Change Conference held in June 2013 suffered indeed from the retaliation of a group of countries led by the Russian Federation as direct result of the frustration from Doha. In particular, at the 38th meeting of the Subsidiary Body for Implementation (SBI38), the Russian Federation, Belarus and Ukraine, in communications dated 26 April, 7 May and 15 May 2013, respectively, requested the secretariat to include an agenda item entitled “Procedural and legal issues relating to decision-making by the Conference of the Parties and the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol” on the provisional agenda for SBI38. As a consequence, the works of SBI38 were enormously delayed since the SBI was not able to adopt its agenda during the whole session, as there was no consensus on the inclusion of the agenda item proposed by Belarus, Russian Federation and Ukraine. 

The main consequence of the cases presented above is that, since Cancun and Doha, the COP agenda includes (a) an item on decision-making in the UNFCCC process as proposed by Belarus and the Russian Federation; and (b) a proposal from Papua New Guinea and Mexico to amend Articles 7 and 18 of the Convention.

The proposal of Belarus and the Russian Federation on decision-making under the UNFCCC process first appeared in the agenda of COP19 in Warsaw as sub-item under administrative, financial and institutional matters. Since then, forward-looking, open-ended informal consultations on decision-making in the UNFCCC process have been conducted by the COP in conjunction with Subsidiary Bodies meetings to report back at every COP. Under this item, the proponents suggest discussing the notion of consensus and its interpretation, the powers of the presiding officers and procedural violations, the transparency of the UNFCCC process, the issue of voting and the principles of the United Nations, in particular the principle of sovereign equality of all states.

The proposal by Papua New Guinea and Mexico to amend Articles 7 and 18 of the Convention submitted in 2011 is about Parties’ right to vote as inscribed in the text of the Convention. Specifically, the proposal suggests that “Parties shall make every effort to reach agreement on all matters by consensus. If such efforts to reach consensus have been exhausted and no agreement has been reached, a decision shall, as a last resort, be adopted by a three-fourths majority vote of the Parties present and voting, except the following which shall be taken by consensus: a. the financial rules referred to in Article 7, paragraph 2 (k) of the Convention; b. decisions under paragraph 3 of Article 4 and paragraphs 1, 3 or 4 of Article 11 of the Convention”. 

According to Papua New Guinea and Mexico, since COP2 in 1996, by failing to adopt the Rules of Procedure including Rule 42 on voting, the fundamental “right to vote” described in Article 18 of the Convention and ratified by 194 national congresses and parliaments has not been put into practice with the exception of the procedure to adopt amendments to the Convention. Furthermore, the lack of agreement on Draft Rule 42 of the Rules of Procedure has created uncertainty with respect to how substantive decisions are to be adopted after every effort to reach consensus has been exhausted. Papua New Guinea and Mexico proposed the necessary amendments to the Convention in order to make effective the right to vote under Article 18 and allow a “last resort” vote to be taken only when every effort to reach consensus has failed and where there is a matter that carries broad-based support and “political will”.

The proposal was first included as a COP agenda item at COP17 in Durban. Clearly, moving from “consensus” to “majority voting” is a decision which would currently require “consensus”. Since a few Parties repeatedly refused to even start such discussion, the item has been “held in abeyance” and discussed at each COP session. Informally, several Parties have expressed interest and even support to such an amendment. However, this issue still remains too political to be solved at the technical level during COP sessions.

Paul Oquist, head of the Nicaraguan delegation to COP21 (Source: Ahram Online, 2015)

In chronological terms, the last friction about consensus on the adoption of a COP decision comes from the final minutes of Paris COP21, when French COP President Laurent Fabius put Nicaragua’s request for intervention on hold and only gave them the floor after the gavel came down, marking the adoption of the historical Paris Agreement. A few minutes later, as reported by the media that were present in the room, when Nicaragua was finally given the floor its Ambassador complained for not being given the chance to speak before the adoption of the Agreement, essentially arguing that he would have denied consensus if he had a chance to[8].

Nevertheless, there is no doubt that the constant research of “consensus” in its widest interpretation has severely slowed progress and undermined global ambition. At Katowice COP24, specifically at sessions under the Subsidiary Body for Scientific and Technological Advice (SBSTA), Parties were not able to agree on whether and how to welcome the IPCC Special Report on 1.5°C of warming which the COP itself had requested the IPCC to produce. This and other cases have revamped the long-standing proposal to shift from a consensus-based system to a majority voting one.

The events referred to above show that a procedural ruling on the meaning of consensus and what Parties understand this to be would contribute to shed some light on this aspect. Raising the attention of negotiators on the necessity for a clear decision on the application of the Rules of Procedure is deemed of utmost importance. As of today, however, no simple way out seems within reach nor it is expected anytime soon, unless a political agreement is found to initiate such discussions.

References:

[1] UNFCCC, 1996. Organizational Matters, Adoption of the Rules of Procedure (document FCCCC/CP/1996/2).

[2] Farhana Yamin and Joanna Depledge, 2006. The International Climate Regime: A Guide to Rules, Institutions and Procedures, Review of European Community and International Environmental Law RECIEL, Volume 15, Issue 1, 2006.

[3] Antto Vihma, 2014. “How to Reform the UN Climate Negotiations?”,Perspectives From The Past, Present And Neighbour Negotiations, Finnish Institute of International Affairs, FIIA Working Paper October 2014.Finnish Institute of International Affairs (FIIA).

[4] UNITAR, 2005. Glossary of Terms, Multilateral Conferences and Diplomacy.

[5] UNFCCC, 2010. Report of the Conference of the Parties on its sixteenth session, held in Cancun from 29 November to 10 December 2010 Part One: Proceedings (document FCCC/CP/2010/7).

[6] Ed King, 2012. “UN climate chief dismisses Russia ‘hot-air’ protest in Doha”, Climate Home News.

[7] UNFCCC, 2012. Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its eighth session, held in Doha from 26 November to 8 December 2012 Part One: Proceedings, paragraph 42 (document FCCC/KP/CMP/2012/13).

[8] Climate Home News, 2015. “As it happened: 195 countries agree Paris climate deal”.

Other relevant sources:

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