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Climate of Consensus: Managing Decision Making in the UN Climate Change Negotiations

Authors:
  • Finnish Institute of International Affairs

Abstract

The United Nations climate change negotiations have been constantly hampered by procedural disputes and unclear decision making. This article explores ideas for reforming the decision making of the Conference of the Parties (COP) and the importance of COP decisions. It argues that scholars have tended to overlook the importance of COP decisions in global climate governance as a whole, on the one hand, and the weak practices of the COP's decision-making process, on the other. The article underscores that while majority voting is not politically viable – although voting on a limited set of issues is potentially useful – decision making can be significantly improved by enhancing the current practices of consensus building. The article calls for the strategic leadership role of the COP Presidency to be recognized and its best practices institutionalized. The primary goal of this article is to contribute to the wider ongoing debate on the possibilities and limitations of the regime established by the United Nations Framework Convention on Climate Change.
Climate of Consensus: Managing Decision Making
in the UN Climate Change Negotiations
Antto Vihma*
The United Nations climate change negotiations have
been constantly hampered by procedural disputes and
unclear decision making. This article explores ideas for
reforming the decision making of the Conference of the
Parties (COP) and the importance of COP decisions. It
argues that scholars have tended to overlook the impor-
tance of COP decisions in global climate governance as
a whole, on the one hand, and the weak practices of the
COP’s decision-making process, on the other. The
article underscores that while majority voting is not
politically viable – although voting on a limited set of
issues is potentially useful – decision making can be
significantly improved by enhancing the current prac-
tices of consensus building. The article calls for the
strategic leadership role of the COP Presidency to be
recognized and its best practices institutionalized. The
primary goal of this article is to contribute to the wider
ongoing debate on the possibilities and limitations of
the regime established by the United Nations Frame-
work Convention on Climate Change.
INTRODUCTION
In the yearly aftermath of United Nations (UN) climate
change meetings, many reporters, academics, negotia-
tors and civil society organizations usually criticize the
United Nations Framework Convention on Climate
Change (UNFCCC) for another disappointing outcome.
Some call for a reform of the UN model of multilateral
negotiations; others argue for abandoning the talks
altogether or moving the negotiations elsewhere.1These
suggestions enter the expert and public consciousness
alike via the mass media. Indeed, the UNFCCC negotia-
tions have been constantly hampered by procedural
disputes and unclear decision making.2Over the years,
the climate negotiations have been characterized by
controversies over agendas, transparency, decision-
making procedures and interpretations of the consen-
sus requirement, as well as various other procedural
issues.3The climate negotiations have also intensified
on many levels since they were launched in the 1990s:
there has been a gradual increase in sessions, sub-
groups, decisions, ministers, participation by heads of
State and government, documents and money in the
UNFCCC system.4Meanwhile, global greenhouse gas
emissions have increased rapidly.5The 2° Celsius target
is in danger of slipping out of reach.6Taken together,
these factors raise questions about how to enhance the
efficiency of the UN climate negotiations – and espe-
cially how best to manage or reform the decision-
making procedures of the UNFCCC.
In this article, I explore ideas for reforming the decision
making of the UNFCCC’s Conference of the Parties
(COP) and the importance of COP decisions. I argue
that while their legal implications are highly contextual,
COP decisions are growing in importance. The
decision-making process of the COP, however, remains
problematic. This article underscores that while major-
ity voting in the decision making does not seem politi-
cally viable – although voting on a limited set of issues
is possible and potentially useful – it can be signifi-
* Corresponding author.
Email: antto.vihma@fiia.fi.
1Many prominent analysts have raised these issues. See, e.g., D.G.
Victor, Global Warming Gridlock: Creating More Effective Strategies
for Protecting the Planet (Cambridge University Press, 2011). Several
policy makers have voiced their frustration since the Copenhagen
meeting in 2009 in particular. For a forthright example, see the
remarks by Mohammed Nasheed, the President of the Maldives, at
the Durban meeting in 2011: ‘The current negotiation process is
stupid, useless and endless. It is based on this principle: two Parties
reach an agreement, a third one comes alone and says it doesn’t
agree and it reduces the ambition of the others.’ ‘UN Climate Talks
“Stupid, Useless and Endless” ’, The News (14 October 2011),
found at: <http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID
=72410&Cat=1>.
2J. Werksman, Procedural and Institutional Aspects of the Emerging
Climate Change Regime: Do Improvised Procedures Lead to Impov-
erished Rules? (Foundation for International Environmental Law and
Development, 1999).
3J. Depledge and P. Chasek, ‘Raising the Tempo: The Escalating
Pace and Intensity of Environmental Negotiations’, in: P. Chasek and
L. Wagner (eds.), The Roads from Rio: Lessons Learned from
Twenty Years of Multilateral Environmental Negotiations (Routledge,
2012), 19; K. Kulovesi, ‘A New Chapter in the UN Climate Change
Negotiations? First Steps under the Durban Platform for Enhanced
Action’, 3:1 Climate Law (2012), 181; J. Depledge, ‘Looking Back and
Looking to Others: Insights on the Organization of the Climate
Change Negotiations’ (unpublished, 2010); A. Vihma and K. Kulovesi,
Strengthening the Global Climate Negotiations: Improving the Effi-
ciency of the UNFCCC Process (Nordic Council of Ministers, 2012),
found at: <http://www.norden.org/en/publications/publikationer/2012-
902>.
4See J. Depledge and P. Chasek, n. 3 above.
5United Nations Environment Programme (UNEP), The Emissions
Gap Report 2013 (UNEP, 2013).
6Ibid., at 4.
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Review of European Community & International Environmental Law
RECIEL •• (••) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12093
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1
cantly improved by enhancing the current practices of
consensus building. The article calls for the strategic
leadership role of the COP Presidency to be recognized
and its best practices institutionalized, with increased
support capacity from the UNFCCC Secretariat and
political effort from parties. The goal of this article is to
contribute to the wider ongoing debate on the possibili-
ties and limitations of the UNFCCC itself, as outlined
above.7
The discussion on the decision making and organiza-
tion of the negotiation process of the UNFCCC is as old
as the regime itself.8Many ideas currently being floated
by parties and experts closely resemble the discussions
of the 1990s.9What emerges, in essence, is a discussion
on the distribution of functions and authority between
sovereign States and the institutions they create to
carry out commonly agreed objectives that depend
upon international cooperation. These discussions
concern, according to Werksman, the relations between
(i) an individual State and the COP; (ii) an individual
State and the Secretariat; (iii) the regime’s institutions
and other international institutions; and (iv) the Con-
vention’s institutions and those of its Protocol(s).10
For the purposes of this article, ‘efficiency’ in decision
making is understood in pragmatic terms as the utiliza-
tion of time and resources, while also taking into
account the outputs and their relevance for responding
to the threat of climate change.11 An ‘efficient process’
is, of course, a politically charged concept as, from a
critical perspective, efficiency can be seen as an attempt
to prioritize somebody’s political agenda.12 In interna-
tional negotiations, even the most pragmatic manage-
ment may become an aspect of social antagonism,
instead of being purely ‘neutral’ or ‘rational’ in the way
some developed country parties typically might
assume. Reliance on the rules of procedure and other
procedural vehicles frequently presents a legitimate
attempt by less powerful negotiating groups to influ-
ence the substantive outcome and ensure that their
voices are heard.13 However, procedural tools can also
be used in bad faith, to ‘block’ the process, create mis-
trust and prevent the negotiations from moving
forward. Bearing in mind these underlying tensions,
this article sets out to explore the decision making of
the COP in the UNFCCC negotiations, and the extent to
which it could be improved by structural reforms
and/or successful oversight of the negotiating process.
Is it possible to enhance the decision making in the UN
climate talks, or would attempts at this just open a
Pandora’s Box of procedural wrangling? The article
builds on the author’s participatory observation work in
the UNFCCC negotiations,14 interviews with prominent
experts15 and a workshop that took place at the Nordic
Council of Ministers in Copenhagen.16 Many of the
ideas presented here are based on the work conducted
in this context. These ideas have also been enriched and
further developed in close correspondence with Profes-
sor Kati Kulovesi.
When discussing the decision-making process of the
UNFCCC, some close to the policy process are quick to
argue that ‘political will’ will ultimately be needed, and
once that will is present, procedures will take care of
themselves.17 Indeed, the negotiation outcome ulti-
mately seems to depend more on the leadership and
political momentum that originates from the domestic
sphere of key countries than, for example, on the deci-
sion making or organizational issues in the climate
negotiations.18 While there is more than a grain of truth
to these arguments, a pragmatic approach also suggests
that it is likewise important to achieve the most ambi-
tious decisions within the political constraints at a given
time, and this can only be ensured through a consistent,
legitimate and efficient negotiation process. The article
7For a recent example of this debate, involving both academics and
practitioners, see the materials of the workshop ‘Building the Hinge:
Reinforcing National and Global Climate Governance Mechanisms’,
5–7 December 2013, Neemrana Fort, India, found at: <http://
cprindia.org/seminars-conferences/5043-building-hinge-reinforcing-
national-and-global-climate-governance-mechanis>.
8T. Gehring, ‘International Environmental Regimes: Dynamic
Sectoral Legal Systems’, 1 Yearbook of International Environmental
Law (1990), 35.
9For an overview, see J. Werksman, n. 2 above.
10 Ibid., at 4.
11 For a theoretical account of efficiency, levels of effectiveness and
their relation to legitimacy, see S. Karlsson-Vinkhuyzen and A.
Vihma, ‘Comparing the Effectiveness and Legitimacy of Global Hard
and Soft Law: An Analytical Framework’, 3:4 Regulation and Gover-
nance (2009), 400. See also A. Underdal and O. Young (eds.),
Regime Consequences: Methodological Challenges and Research
Strategies (Kluwer Academic, 2004).
12 See A. Vihma and K. Kulovesi, n. 3 above.
13 For a more detailed account, see A. Vihma and K. Kulovesi, ‘Can
Attention to the Process Improve the Efficiency of the UNFCCC
Negotiations?’, 7:4 Carbon and Climate Law Review (2013), 242.
14 The author has participated as an observer, writer/editor for Earth
Negotiations Bulletin or as a consultant at UNFCCC meetings in
Vienna (27–31 August 2007), Bali (3–14 December 2007), Bonn
(2–13 June 2008), Poznan (1–12 December 2008), Bonn (2–13 June
2009), Bonn (10–14 August 2009), Barcelona (2–6 November 2009),
Copenhagen (7–18 December 2009), Bonn (9–11 April 2010), Bonn
(2–6 August 2010), Cancún (29 November–10 December 2010),
Bonn (6–17 June 2011), Durban (28 November– 10 December 2011),
Bangkok (28 August–7 September 2012), Doha (26 November–8
December 2012), Bonn (29 April–3 May 2013) and Warsaw (11–22
November 2013).
15 A total of 14 semi-structured interviews with prominent experts
were carried out in 2013 to enrich the analysis: Anna Korppoo,
Farhana Yamin, Halldor Thorgeirsson, Harri Laurikka, Jacob
Werksman, Jukka Uosukainen, Kaisa Kosonen, Lavanya Rajamani,
Luis Alfonso De Alba, Matti Nummelin, Michael Jacobs, Michael
Zammit Cutajar, Teresa Ribera and Outi Honkatukia. The
interviewees participated in their personal capacity and are not
quoted directly in this article.
16 A working paper was commissioned by the Nordic Working Group
on Global Climate Negotiations (NOAK) to serve as a discussion
paper for the workshop. See A. Vihma and K. Kulovesi, n. 3 above.
17 Personal interviews, n. 15 above.
18 See J. Depledge, n. 3 above.
ANTTO VIHMA RECIEL •• (••) 2014
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2
begins by outlining the backdrop to COP decisions,
summarizing the discussion on their key legal qualities,
and underscoring their continuous and growing impor-
tance. It then turns to majority voting and consensus.
The major focus, however, is placed on the practices of
consensus-building and leadership by the Presidency.
Finally, some conclusions are drawn.
COP DECISIONS TO RULE
THEM ALL?
Since the 1970s, multilateral environmental agreements
have increasingly adopted the COP as a standard model
for treaty administration.19 Notably, the COP model has
generally not been extended outside of the environmen-
tal field.20 Although limited in several formal ways (see
below), the COP and its decision-making process have
been and will very likely remain a crucial element in
global climate governance.21 This state of affairs has
failed, however, to generate much interest from either
analysts or practitioners in the procedures of the COP,
with the spotlight currently being on the new treaty
architecture for the period beyond 2020.22
There are several reasons for the current significance of
COP decisions. First, in general, while not formally
legally binding, the evidence suggests that COP and
COP/MOP23 decisions in the UNFCCC system have
been used rather ambitiously, and have far-reaching
political, if not legal, consequences. The 2001 Mar-
rakesh Accords, and to a lesser degree the 2011 Cancún
Agreements, are typically cited as prime examples of
this.24 Second, there is an opportunity to use the
momentum of high-profile negotiations leading up to
COP21 in Paris to address at least some of the pressing
decision-making issues. The Paris COP may or may not
fulfil the Durban mandate and deliver a treaty (see
below), but in any case COP decisions will in all likeli-
hood be needed to operationalize the possible agree-
ment, just like the operationalization of the Kyoto
Protocol relied considerably on COP/MOP decisions.25
In this sense, it is plausible that COP and COP/MOP
decisions will continue to be the principal instruments
of the UNFCCC until 2020 and beyond, regardless of
whether a new treaty is signed in Paris in 2015. Third,
COP decisions are needed when the UNFCCC connects
to the broader climate governance landscape – an issue
of growing political and academic interest.26 There has
been significant development on the institutional front
in recent years as the UNFCCC has recently excelled in
what it has always been good at: creating institutions.
The Green Climate Fund, the Standing Committee on
Climate Finance, the Adaptation Committee, the Tech-
nology Executive Committee and Technology Centre
and Network have arguably enhanced the status of
adaptation, technology and finance in international
climate policy, and increased continuity by ensuring
their more frequent and thorough consideration.27
There is also a new, albeit contested, openness among
the parties towards recognizing and working with other
climate policy processes, which is visible, for example,
in the discussions concerning international cooperative
initiatives.28 The new architecture of the UNFCCC,
potentially coupled with formal linkages with interna-
tional cooperative initiatives, highlights the role of the
COP and its decision making in the larger context of
global climate governance.
COP17 in Durban resulted in parties launching the Ad
Hoc Working Group on the Durban Platform for
Enhanced Action to negotiate ‘a protocol, another legal
instrument or agreed outcome with legal force under
the Convention applicable to all’.29 The negotiations are
scheduled to conclude in Paris in 2015, with the new
instrument applying from 2020 onwards. The compro-
mise language ‘agreed outcome with legal force’, result-
ing from United States and Brazilian negotiators
huddling together to solve a political stand-off between
19 For an in-depth analysis, see R. Churchill and G. Ulfstein, ‘Autono-
mous Institutional Arrangements in Multilateral Environmental Agree-
ments: A Little-noticed Phenomenon in International Law’, 94:4
American Journal of International Law (2000), 623.
20 Ibid., at 656.
21 Similarly, Brunnée highlights that the legislative role of COPs is ‘not
confined to instances of formally binding decision-making’. J.
Brunnée, ‘Coping with Consent: Law-making under Multilateral Envi-
ronmental Agreements’, 15:1 Leiden Journal of International Law
(2002), 1, at 51. Wiersema convincingly argues that the significance
of ‘consensus-based COP activity’ is not adequately captured with
categories of ‘hard law’ or ‘soft law’. A. Wiersema, ‘The New Interna-
tional Law-makers? Conferences of the Parties to Multilateral Envi-
ronmental Agreements’, 31:1 Michigan Journal of International Law
(2009), 231, at 232–233.
22 Notable recent exceptions include: P. Chasek and L. Wagner, n. 3
above; and L. Kemp, Framework for the Future: The Possibility of
Majority Voting within the United Nations Framework Convention on
Climate Change (Freie Universität Berlin, 2014).
23 The equivalent of the COP under the Kyoto Protocol is the Confer-
ence of Parties serving as the Meeting of the Parties to the Kyoto
Protocol (COP/MOP). See Kyoto Protocol to the United Nations
Framework Convention on Climate Change (Kyoto, 11 December
1997; in force 16 February 2005) (‘Kyoto Protocol’), Article 13.
24 On the implications of the Marrakech Accords, see, e.g., H. Ott,
‘Climate Policy after the Marrakech Accords: From Legislation to
Implementation’, 12 Yearbook of International Environmental Law
(2001). On the significance of the Cancún Agreements, see L.
Rajamani, ‘The Cancún Climate Agreements: Reading the Text,
Subtext and Tea Leaves’, 60:2 International and Comparative Law
Quarterly (2011), 499.
25 See H. Ott, n. 24 above.
26 For reflections on the contemporary role of the UNFCCC, see
workshop materials, n. 7 above; and A. Vihma and H. van Asselt,
Great Expectations: Understanding Why the UN Climate Talks Seem
to Fail (Finnish Institute of International Affairs, 2012).
27 See K. Kulovesi, n. 3 above.
28 N. Harrison et al., Enhancing Ambition through International Coop-
erative Initiatives (Nordic Council of Ministers, 2014).
29 Decision 1/CP.17, Establishment of an Ad Hoc Working Group on
the Durban Platform for Enhanced Action (UN Doc. FCCC/CP/2011/
9/Add.1, 15 March 2012), at paragraph 2.
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3
the European Union and India,30 does not reflexively
signal a ratifiable instrument, but makes a ratifiable
treaty the most widely expected form of outcome for
post-2020.31 That said, while a negotiating process
towards an outcome that applies to all parties has been
launched and negotiations have continued for more
than two years, the implementation of a new multilat-
eral climate treaty still remains a distant prospect.32 The
clause ‘applicable to all Parties’ implies legal symmetry
for developed and developing countries. This
‘Durbanization’ of the climate regime has caused a
political counter-reaction in which a new group of
developing countries – the ‘Like-Minded Developing
Countries’33 – is resisting the erosion of differentiation
for major economies.34 The question of legal form and
symmetry has an awkward history in the context of
previous negotiations. It has been one of the key
hurdles in the negotiations since COP13 in Bali, where
the controversial question of the legal form of the Ad
Hoc Working Group on Long-term Cooperative
Action’s outcome was deliberately deferred to secure
agreement on launching the negotiations that include
all parties to the Convention.35
Over the years, the longstanding difficulty of reaching
agreement on a new treaty has channelled interest and
attention towards examining the possibilities and the
limitations of COP decisions, as well as their legal
status.36 The question of whether COP decisions are
binding under international law has been revisited by
legal scholars after the Durban outcome.37 Decisions
made by treaty bodies can certainly create international
obligations,38 but the majority view is that they lack a
legally binding character.39 Constructivist scholars such
as Jutta Brunnée note that ‘[COP] decisions do contain
terms that make conduct mandatory, and make access
to certain benefits contingent upon compliance with
some of these mandatory terms. Yet, they do not appear
to be binding in a formal sense.’40 Two factors emerge
as important when analyzing the impacts of COP deci-
sions: the treaty itself, and domestic legislation and
politics.
First, different treaties empower their respective COPs
to different degrees.41 The UNFCCC implicitly grants
the COP authority to use decisions to establish rules for
the implementation of various rules, processes and
standards included in the text of the Convention. The
COP in the climate regime is empowered to ‘make,
within its mandate, the decisions necessary to promote
the effective implementation of the Convention’ and to
‘exercise such other functions as are required for the
achievement of the objective of the Convention’.42 In the
commitments under Article 4, the UNFCCC also spe-
cifically entrusts the COP with periodically reviewing
and improving key operative paragraphs requiring
developed country parties to both report on and actu-
ally mitigate their greenhouse gas emissions until the
overall goals of the Convention have been achieved.43
The text of the Kyoto Protocol instructs the COP/MOP,
for example, to adopt ‘rules and guidelines’ concerning
various aspects of implementing the Kyoto Protocol.44
Nothing in the Convention text, however, suggests that
the COP could create new enforceable obligations for
Parties, but it clearly implies that the COP has the
power to add specificity to Parties’ obligations under
the UNFCCC.
Second, the laws of each individual State party to a
treaty dictate whether an obligation imposed by deci-
sion of a treaty body can be enforced as a domestic law
matter without separate legislation. The UNFCCC
explicitly states that amendments and protocols ‘enter
into force’, but does not suggest how and whether deci-
sions acquire force.45 Consequently, COP decisions do
not, per se, require ratification. However, in most coun-
tries, the contents of an international instrument deter-
30 Personal interviews, n. 15 above.
31 L. Rajamani, ‘Deconstructing Durban’, Indian Express (15 Decem-
ber 2011).
32 For a detailed discussion on the reasons for this, see K. Kulovesi,
n. 3 above.
33 This informal group has been previously active in the human rights
negotiations. In the climate change negotiations, the core of the group
consists of the major economies China and India, the Bolivarian
‘ALBA’ countries (Venezuela, Bolivia, Ecuador, Cuba and Nicara-
gua), as well as Saudi Arabia, Egypt, the Philippines and Pakistan.
The group’s statements are also often signed by some of the follow-
ing countries: Democratic Republic of Congo, Thailand, Malaysia,
Argentina, Paraguay, Dominica, El Salvador, Iran, Iraq, Mali, Sri
Lanka and Sudan.
34 This political interpretation is based on the author’s participatory
observation work as well as the interviews; see n. 14 and n. 15 above.
35 R. Clémençon, ‘The Bali Road Map: A First Step on the Difficult
Journey to a Post-Kyoto Protocol Agreement’, 17:1 Journal for Envi-
ronment and Development (2008), 29.
36 COP decisions have been analyzed, e.g., as ‘global administrative
law’ or as ‘soft law’. See P. Cullet, ‘Governing the Environment
without COPs: The Case of Water’, 15:1 International Community
Law Review (2013); A. Vihma, ‘Analyzing Soft Law and Hard Law in
Climate Change’, in: E. Hollo, K. Kulovesi and M. Mehling (eds.),
Climate Change and the Law (Springer, 2012). For an analysis of the
significance of COP decision making in enriching and thickening
existing legal obligations, see A. Wiersema, n. 21 above.
37 For a comprehensive account of the relationship between United
States law and COP decisions, see Legal Response Initiative, The
Status of UNFCCC COP and Other Treaty Body Decisions under
US Law (Legal Response Initiative, 2011), found at: <http://
legalresponseinitiative.org/wp-content/uploads/2013/09/BP35E-
Briefing-Paper-Status-of-COP-Decisions-under-US-Law-23-
November-2011.pdf>.
38 Ibid., at 3–4.
39 See, e.g., Foundation of International Environmental Law and
Development (FIELD), Briefing Note on the ‘Legal Form’ of a New
Climate Agreement (FIELD, 2011). For a more detailed analysis, see
R. Churchill and G. Ulfstein, n. 19 above.
40 See J. Brunnée, n. 21 above, at 4.
41 See A. Wiersema, n. 21 above.
42 United Nations Framework Convention on Climate Change (New
York, 9 May 1992; in force 21 March 1994) (‘UNFCCC’), Article 7.2.
43 Ibid., Article 4.2.
44 Kyoto Protocol, n. 23 above, Article 19.
45 See UNFCCC, n. 42 above, Articles 15.5, 16.3 and 23.
ANTTO VIHMA RECIEL •• (••) 2014
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4
mine the legal procedures – whether it can be complied
with executive authority or must be transposed into
national legislation. The more ambitious COP decisions
become, the more likely they are to trigger national
implementation procedures in accordance with
national constitutional requirements. Two examples
illustrate the implications of this continuum. In
Finland, the contents of the Marrakesh Accords were
deemed to be so substantial that they were transposed
into the national legal system through a special
decree.46 This has not been done with respect to other
COP or COP/MOP decisions so far. In the United
States, there is an incentive to avoid triggering a Senate
vote or other legislative action as the Advice and
Consent Procedure of the Senate is extremely difficult
and uncertain for an international environmental treaty
or amendment.47 Although executive action concerning
international agreements is often perceived as circum-
venting Congress, the President has the legal authority
and a certain political space for this.48 The question in
the American context extends to whether the adminis-
tration has the power to implement (or comply with)
ambitious COP decisions. This depends on existing
United States law and the precise contours of the obli-
gation created by the COP decision: new monitoring
and reporting requirements should generally pose no
legal obstacles, but binding and predictable financial
commitments, for example, would require new legisla-
tion.49 As is well known, the existing legislative author-
ity under the Clean Air Act gives the executive branch
several tools to regulate greenhouse gases, and this has
been recognized by the Supreme Court.50 However,
there is uncertainty that is hard to control: ambitious
COP decisions require ambitious executive action that
is subject to future judicial challenges, as well as future
executive branch reversal.
OUT OF THE LEGAL VACUUM?
If we agree that COP decisions are of political and
potentially of legal relevance in global climate gover-
nance, the focus turns to how those decisions are made:
the troublesome decision-making process of the
UNFCCC. Decision making in the COPs of the UNFCCC
takes place in a ‘legal vacuum’ with no adopted rules of
procedure and complex, potentially confusing dynam-
ics. Initially, no consensus on the adoption of the rules
of procedure was reached at the last International
Negotiations Committee meeting in 1994 before COP1,
with the negotiating aim of Saudi Arabia and other oil-
producing and exporting countries (OPEC) becoming
the de facto outcome: all general decisions must be
taken by consensus.51 The rules of procedure include
rule 42, with two options for voting on general matters.
The COP has operated with draft rules of procedure
during its 19-year history; as decided by COP1, ‘the
draft rules of procedure are at present being applied by
the COP and its subsidiary bodies, with the exception of
draft rule 42’.52
The mainstream opinion of international lawyers would
have it that consensus is denoted by the Chair’s percep-
tion that there is no stated objection.53 This has been the
practice in most global negotiation forums and can be
viewed as part of international customary law.
However, it has certainly been the practice in the
UNFCCC – as well as in some other environmental trea-
ties – that decisions have been gavelled through a
limited amount of opposition.54 This was already the
case at COP1 in Berlin, where Saudi Arabia fought hard
to prevent the adoption of the Berlin Mandate to nego-
tiate the Kyoto Protocol.55 In other cases, when the
opposition has been perceived by the Chair as strong
enough, the decision texts have only been ‘noted’, such
as the Ministerial Declaration in Geneva in 1996 and
the Copenhagen Accord in 2009. Recently, the concept
of ‘consensus’ in UNFCCC decision making came under
the spotlight in Doha in 2012, where Russia, Belarus
and Ukraine objected to the adoption of the decisions
under the Kyoto Protocol, and in Cancún in 2010, in a
heated exchange between Bolivia and the COP Presi-
dent from Mexico. The Mexican Presidency gavelled
through the decisions and clarified that
the consensus rule does not mean unanimity, far less does it
mean the possibility of one delegation exercising a right of
46 Decree of the President of the Republic Amending the Decree on
the Entry into Force of the Act on Entry into Force of the Kyoto
Protocol to the UN Framework Convention on Climate Change and
the Protocol’s Legislative Provisions (376/2006). The Decree pro-
vides that specified decisions adopted by the COP/MOP in Montreal
on 9 December 2005, which the President of the Republic approved
on 19 May 2006, are in force and applicable from 9 December 2005.
For more details, see A. Vihma and K. Kulovesi, n. 3 above.
47 For an overview of the status of ten pending environmental treaties
– half signed by Democratic Presidents and half signed by Republi-
can Presidents – which have been pending for 13 years on average
awaiting ratification, see M.J. Angelo et al.,Reclaiming Global Envi-
ronmental Leadership: Why the United States Should Ratify Ten
Pending Environmental Treaties (Center for Progressive Reform,
2012).
48 E. Posner, ‘Treaty-ish: Obama’s Proposed Climate Change Agree-
ment Would Be Good for the Planet and is Perfectly Legal’, The Slate
(28 August 2014), found at: <http://www.slate.com/articles/news_and
_politics/view_from_chicago/2014/08/obama_s_proposed_climate
_change_agreement_good_for_the_planet_and_perfectly.html>.
49 See Legal Response Initiative, n. 37 above.
50 Massachusetts v. EPA, 549 U.S. 497 (2007); American Electric
Power Co. v. Connecticut, 564 US (2011).
51 For a detailed look at the history of the unadopted but applied Rules
of Procedure in the UNFCCC, see J. Werksman, n. 2 above, at 5–8.
52 UNFCCC, Adoption of the Rules of Procedure, Note by the Secre-
tariat (UN Doc. FCCC/CP/1996/2, 22 May 1996) (‘Rules of Proce-
dure’), at paragraph 2.
53 F. Yamin and J. Depledge, The International Climate Change
Regime (Cambridge University Press, 2004), at 433; L. Rajamani, n.
24 above, at 515.
54 A. Vihma and K. Kulovesi, n. 3 above.
55 J. Depledge, ‘Striving for No: Saudi Arabia in the Climate Change
Regime’, 8:4 Global Environmental Politics (2008), 9, at 12.
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veto after years of hard work and huge sacrifices by many
others. . . . I cannot disregard the position and wish of 193
other Parties, hence the decision has been duly adopted.56
Afterwards, Bolivia and its nongovernmental support-
ers dubbed the Cancún meeting a betrayal of ‘the demo-
cratic principles’ and ‘core values of the UN’ – namely
the consensus requirement.57
The framework established by a regime’s rules of pro-
cedure is of vital importance as it helps to shape parties’
expectations and power relationships.58 The consensus
requirement for 195 countries has been perceived as
problematic for a long time.59 It gives undue weight to
parties with obstructive tendencies – parties that prefer
no outcome to any available outcome60 – and may help
parties to water down agreements with brinkmanship
strategies. Political transparency and accountability are
called into question with ‘behind the scenes’ opposition
as parties do not have to openly reveal their political
positions. The contextual application of consensus ulti-
mately depends on the President’s perception and abili-
ties (see the next section). Final plenaries of big
meetings have become unpredictable and theatrical as
decision packages are gavelled – or not gavelled –
through objections.
Majority voting would raise some concerns as well (e.g.,
concerning the legitimacy of decision making and the
potential ‘numbers game’), but it would certainly be
useful in some cases ‘as a last resort’, as written in the
draft rules of procedure.61 There have been several
attempts at enabling majority voting in the UNFCCC.
When negotiations began for the Kyoto Protocol and for
stronger emission reduction commitments, many saw
that the absence of voting rules threatened to unduly
influence the crafting of the Protocol, or even to block
its adoption altogether.62 The most serious push to
reach consensus on the rules of procedure took place in
informal consultations by the COP Presidency in 1997,
but there was no breakthrough. In addition, two other,
quite different attempts to bypass the requirement that
decisions be adopted by consensus were also made
during the heated debates of the late 1990s.63
A more recent alternative route has been proposed by
Mexico and Papua New Guinea, which have tabled a
proposal to amend the Convention regarding voting. In
essence, the proposal would enable the COP to adopt
decisions with a three-quarters majority vote that
would take place ‘as a last resort’ after ‘every effort’ to
reach consensus had been exhausted. Decisions related
to financing would be excluded from the scope of the
amendment and taken by consensus. The process of
amending the UNFCCC is written into the Convention
text itself, not the rules of procedure, and is possible
with a three-quarters majority.64 However, the amend-
ment would also require ratification to enter into force,
and would only apply to those parties that ratify. This
can, as such, lead to considerable hurdles, as the ratifi-
cation process tends to be uncertain and time-
consuming. As a pessimistic example, having been
adopted in 2005, the Belarus amendment to the Kyoto
Protocol (in which Belarus is supposed to enter into the
Annex B) has not yet entered into force.65 Moreover, the
support of key countries for majority voting as a prac-
tice in the COP does not seem to be in place. If there was
widespread agreement among major economies to opt
for majority voting, objections raised by Saudi Arabia
and a handful of OPEC (Organization of the Petroleum
Exporting Countries) members, for example, could be
bypassed with a clever procedural reform such as the
Mexico and Papua New Guinea initiative. At COP17 in
Durban, at least Costa Rica, Guyana, Surinam, Sierra
Leone, Colombia, Indonesia, New Zealand and Austra-
lia showed a degree of openness towards the proposal.66
But the United States, China, India and many other
influential countries are positioned against majority
voting.67 Even the European Union, usually a propo-
nent of delegating decision-making authority to inter-
national bodies, has shown only lukewarm interest in
pushing for a majority voting solution or other struc-
tural reforms for decision making.68 It can be argued
that the support for majority voting has actually
declined somewhat over the years, which may be due to
financial stakes getting higher and countries duly
56 COP16, final plenary, 10 December 2010. The webcast archive of
the UNFCCC was unavailable at the time of writing of this article. The
latter part is also quoted in: T. Akanle et al., ‘Summary of the Climate
Change Conference’, 12:498 Earth Negotiations Bulletin (2010), at 6.
57 M. Khor, ‘Complex Implications of the Cancún Climate Confer-
ence’, 25 Economic and Political Weekly (2010), 10.
58 See J. Werksman, n. 2 above.
59 Many scholars have addressed the pros and cons of consensus
and majority decision making. See, e.g., J. Brunnée, n. 21 above; P.
Széll, ‘Decision-making under Multilateral Environmental Agree-
ments’, 26:5 Environmental Policy and Law (1996), 210; J.
Wettestad, Designing Effective Environmental Regimes (Edward
Elgar, 1999), at 24–26.
60 For a detailed account on obstructivism, see J. Depledge, n. 55
above.
61 Rules of Procedure, n. 52 above.
62 For an account of initiatives in the 1990s to advance beyond the
consensus requirement, see J. Werksman, n. 2 above, at 5–7.
63 Ibid.
64 UNFCCC, n. 42 above, Article 15.3.
65 For details, see UNFCCC, Proposal from Belarus to Amend Annex
B to the Kyoto Protocol (UN Doc. FCCC/KP/CMP/2006/2, 16 March
2006).
66 Participatory observation, n. 14 above.
67 This interpretation is based on parties’ interventions in various
meetings and personal interviews. See n. 13 and n. 14 above.
68 ‘The EU could agree to initiate an exploration of structural reforms
but strictly on the condition that it would not interfere with negotiations
up to 2015 and moreover decisions in this respect should take fully
into account the outcome in 2015. Such exploration could take the
form of further preparatory work by the UNFCCC Secretariat or the
appointment of diplomats/facilitators at SBI38 to start consultations.’
Draft EU Position Paper for SBI38 (2013): Arrangements for Inter-
governmental Meetings (AIM) (on file with author).
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becoming more careful, or because parties such as the
EU fear that a voting reform would mean years of politi-
cal and legal wrangling and delays in reaching agree-
ment on the actual substance. Certainly, the issue is
much more complex than dealing with one or a handful
of reluctant parties: a clear shift in the positions of the
United States and China, as well as many others, would
be needed to enable a constructive debate on majority
voting. Almost all the experts interviewed for this
article were deeply sceptical about the rules of proce-
dure being adopted, or the Convention amended to
enable majority voting rules for the COP in the foresee-
able future.69 In sum, consensus prevails, and in the
short term one must look for less ambitious procedural
means to make the COP decision making more efficient
and professional.
There are some – as of yet unused – exceptions where
voting rules are provided in the non-contested parts of
the rules of procedure.70 A vote of confidence for the
Chair in procedural questions is possible according to
non-contested rules,71 and the rules of procedure also
enable voting for the election of officers.72 These modest
ways to bypass consensus would also require a shift in
the culture of the COP, but are certainly possible in the
legal and political sense. Informal voting has taken
place only once in the history of the COPs, on the ques-
tion of whether to locate the Secretariat in Bonn or
Geneva.73 This voting was styled as ‘informal sounding’
and allowed those with the fewest ‘votes’ to withdraw
after each round.74 Officers have never been elected by
voting, although in the Bonn Subsidiary Bodies meeting
in May 2012 this was close and an actual ballot box was
brought to the plenary. The situation was ultimately
resolved without a vote. At times, the Chair has called
for a show of hands to reveal the degree of opposition –
for example, the Chair of the Subsidiary Body on Scien-
tific and Technological Advice (SBSTA), Tibor Farago
(Hungary) used this method at COP2 in 1996 during
negotiations on how to respond to the Second Assess-
ment Report of the Intergovernmental Panel on
Climate Change.75 Several experts feel that voting on
officers may well be needed in the future as some coun-
tries seem to be increasingly using the nominations
process to cause disputes and block progress on new
institutions.76 Several parties, however, seem reluctant
to establish a voting precedent. As is the case when
dealing with consensus, procedural and electoral
voting, as well as informal soundings, require a strong
and able presidency or chairmanship.
Procedural questions have also been taken up in the
formal negotiations recently. The 40th session of the
Subsidiary Body for Implementation (SBI) discussed
submissions from parties and a note by the UNFCCC
Executive Secretary on ways to improve efficiency and
effectiveness, planning, as well as the structure of the
process.77 Decision making under the UNFCCC featured
in three different agenda items at COP19 in Warsaw.78
One of them was tabled by Russia after its objections
were not taken into account at COP18 in Doha,79 and
the first such discussions took place at COP19 in very
cautious tones. The discussion was initially structured
to cover the following themes: the legitimacy of the
process as an overarching element; process-related
issues (being party-driven, transparency, inclusiveness,
fairness and equal treatment, efficiency, effectiveness,
consistency); roles and responsibilities of central actors
(President, presiding officers, parties, the UNFCCC
Secretariat); and organization including high-level
engagement and outcome-related issues (managing
expectations of COP outcomes, process for achieving
outcomes).80 Some experts noted that these discussions
may aim at formalizing the practice of consensus in the
UNFCCC on paper, but this would be an extremely chal-
lenging task politically.81
BUILDING CONSENSUS: RECENT
EXAMPLES
This section explores the question of consensus build-
ing, with special emphasis on informal efforts and the
role of the COP President. It is relatively well known
that the COP Presidency can play a vital role in the
success of climate negotiations.82 However, I argue that
this role has not been adequately recognized by the
parties or experts, and is not adequately supported at
present.
69 Personal interviews, n. 15 above.
70 A related issue to the COP conduct is that voting is a practice in
some operational bodies of the Kyoto Protocol, such as the Executive
Board of the Clean Development Mechanism and the Compliance
Committee.
71 Rules of Procedure, n. 52 above, Rules 34, 35 and 38.
72 Ibid., Rules 51, 52 and 53.
73 Personal interviews, n. 15 above.
74 Ibid.
75 I would like to thank an anonymous reviewer for pointing out this
example.
76 Personal interviews, n. 15 above.
77 UNFCCC, SBI40 Agenda Item 17, Note by the Executive Secre-
tary: Arrangements for Intergovernmental Meetings (UN Doc. FCCC/
SBI/2014/6, 27 March 2014).
78 Agenda item 2(b): Adoption of the Rules of Procedure; Agenda item
6(b): Proposal from Papua New Guinea and Mexico to Amend
Articles 7 and 18 of the Convention, and Agenda item 17(d):
Decision-making in the UNFCCC process. See UNFCCC, Provisional
Agenda and Annotations (UN Doc. FCCC/CP/2013/1, 27 August
2013).
79 COP18, final plenary of the COP/MOP, 8 December 2012. On the
implications of the Doha decisions and decision making in Doha, see
A. Korppoo, The Doha Dead End? Transition Economies and the
New Kyoto Rules (Fridtjof Nansen Institute, 2013).
80 Agenda item 17(d), Preliminary list of Possible Elements on the
Scope of Discussions, Non-paper Tabled by the Chair, 19 November
2013 (on file with the author).
81 Personal interviews, n. 15 above.
82 J. Depledge, Organization of Global Negotiations: Constructing the
Climate Regime (Earthscan, 2005), at 41.
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The President leads the strategic organization of the
negotiations, to a large extent in cooperation with the
UNFCCC Secretariat.83 Strategic and tactical decisions
taken by the COP Presidency typically relate to the
conduct of decision making, use of different negotiating
settings, choices concerning negotiating texts, time
management, transparency, the involvement of minis-
ters and consultation with other stakeholders.84 The
rules of procedure regulate the basic functions of the
COP Presidency.85 According to Rule 22.1, the Presi-
dency is normally subject to rotation among the five UN
regional groups.86 The annually rotating nature of the
COP Presidency is a firmly established and widely
appreciated practice. It does imply, however, that the
strategic leadership style will change with each succes-
sive Presidency, including the manner, scope and inten-
sity of informal preparations.87
The overall context of North-South politics in the UN
climate talks influences and limits the role that can
effectively be taken by the Presidency. It has been
pointed out that COP Presidencies conducted by devel-
oped country parties face a more difficult job and are
more easily accused of bias.88 Moreover, as noted by a
prominent expert, there is ‘a sad history of well-
meaning European COP presidents’.89 Both COPs in the
history of the UNFCCC that have failed to adopt
expected major decisions were chaired by European
countries – the Netherlands in 2000 and Denmark in
2009.90 Poland hosted two COPs in 2008 and 2013 –
and acted as President at COP5 in Bonn – with both
hosted meetings being characterized by an inactive
Presidency and very little informal progress or notable
formal outcomes, although COP19 did agree on a
roadmap towards the Paris COP21. COP5 in Bonn is
characterized as a technical meeting with no major
results.91 The only real European Presidency success
story so far has been COP1 in Berlin in 1995, skilfully led
by the then-Minister for the Environment and Nuclear
Safety, Angela Merkel. In particular, the examples of
the Netherlands and Denmark – both of which worked
hard to make their meetings successful and possess a
formidable record in development cooperation – raise
questions as to whether European countries might have
a tendency to overestimate their good reputation and
the extent to which they have the ear of the South and
the United States in multilateral negotiations.92
A recent prime example of active informal preparations
is the Greenland Dialogue by the Danish Presidency –
an initiative that aimed to build trust and convergence
around key issues.93 Focusing on a core group of 20–30
ministers, the dialogue operated through six roundtable
discussions under the Chatham House Rule, allowing
ministers to meet informally, get to know each other
and discuss options in an open dialogue.94 The ensuing
Mexican Presidency committed itself to conducting a
process that would be transparent and inclusive. This
was, naturally, necessary in the context of post-
Copenhagen anxieties in 2010 to regain the trust of the
parties. Also, in order to achieve this trust, the Mexican
Presidency identified the need to manage the expecta-
tions adequately. After the ‘Copenhagen hype’, there
was a need for ‘parties to know in advance what was
possible and what was not possible’.95 The Presidency
also needed to clearly communicate how they intended
to achieve what was deemed possible. Thus it ‘spent a
good part of 2010 discussing the process’.96 Only after
this phase did the Presidency organize consultations on
the most relevant issues of the package, which eventu-
ally became the Cancún Agreements. Most of the infor-
mal consultations undertaken by Mexico took place in
Mexico City, without disturbing or undermining the
formal negotiations in three Bonn sessions and in
Tianjin.97
The effort by the Mexican Presidency, along with the
parties’ desire to ‘save’ the UNFCCC process and
multilateralism, contributed to the success of the
Cancún Conference, where the transparent leadership
style appeared to be widely appreciated by most
parties.98 Through its leadership strategy, the Mexican
COP Presidency was able to generate a sufficient degree
of support, goodwill and trust to enable COP President
Patricia Espinosa to openly overrule Bolivia’s objec-
tions to the adoption of the Cancún Agreements
without any protests from other parties.99 This mani-
fests how the handling of last-minute procedural issues
is a question of the political capital of the Presidency,
which is built up over the course of the year and infor-
83 For an analysis, see J. Depledge, ‘A Special Relationship: Chair-
persons and the Secretariat in the Climate Change Negotiations’, 7:1
Global Environmental Politics (2007), 45.
84 See J. Depledge, n. 82 above.
85 Rules of Procedure, n. 52 above.
86 Ibid., Rule 22.1.
87 A. Vihma and K. Kulovesi, n. 13 above.
88 See J. Depledge, n. 3 above, at 12.
89 Personal interviews, n. 15 above.
90 COP6 in The Hague reached no formal outcome, only an under-
standing that the talks would later resume. At COP15 in Copenhagen,
the chaotic final plenary only ‘took note’ of the Copenhagen Accord.
See UNFCCC, Decision 2/CP.15, Copenhagen Accord (UN Doc.
FCCC/CP/2009/11/Add.1, 30 March 2010).
91 P. Bettelli et al., ‘Summary of the Fifth Conference of the Parties to
the Framework Convention on Climate Change’, 12:123 Earth Nego-
tiations Bulletin (1999).
92 Personal interviews, n. 15 above.
93 For further discussion, see A. Vihma and K. Kulovesi, n. 13 above.
94 P. Meilstrup, ‘The Runaway Summit: The Background Story of the
Danish presidency of COP15, the UN Climate Change Conference’,
Danish Foreign Policy Yearbook 2010 (2010), at 120.
95 Personal interviews, n. 15 above.
96 Ibid.
97 For a more detailed look at the Mexican Presidency, see A. Vihma
and K. Kulovesi, n. 13 above, at 248–250.
98 See T. Akanle et al., n. 56 above.
99 Ibid., at 28–29.
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8
mal negotiations.100 The exercise was successful,
although the Cancún meeting has also been accused of
setting aside ‘open and participatory methods normal
in the UN’, and it has been claimed that senior nego-
tiators’ work was ‘overtaken’ by ministerial-level
guidance.101 The key question is the applicability
of the Mexican example to the current political
circumstances.
The Mexican Presidency operated before the
‘Durbanization’ of the negotiations – the push for
‘applicability to all’ in the post-2020 agreement and the
formation of Like-Minded Developing Countries to
resist this push. An interesting and quickly spreading
tool in consensus-building is ‘the huddle’, in which key
countries negotiate – usually the final details – unoffi-
cially under everyone’s noses in the plenary setting.
This replicable model was actively encouraged by South
African Presidency and seems to have mushroomed in
climate talks since the Durban meeting in 2011.102 In
Cancún the previous year, all the final wordings were
still agreed behind closed doors. This method and the
relative transparency it brings about seem to be a reac-
tion to the tension caused by both the Copenhagen
experience and ‘Durbanization’. In the huddle, every-
one can see the decision-making process, but few can
participate.
Two of the biggest recent environmental meetings –
COP15 in Copenhagen in 2009 and the Rio+20 summit
in 2012 – albeit quite different in their scope and expec-
tations, offer polar opposite examples of Presidential
leadership and political-level involvement. Before the
start, the meetings shared many similarities: a signifi-
cant number of heads of State and government were
expected to participate, there were approximately two
years of preparatory processes, and about 200 pages of
text, half of which had been somewhat approved before
the meeting.103 In the chaotic final days of the Copen-
hagen meeting (although Denmark had prepared a
‘secret’ draft text) the heads of State and ministers had
to engage in the actual drafting of the text and intense
negotiations in their own improvised meetings to try to
secure an outcome, resulting in the Copenhagen
Accord.104 The Accord contained some important politi-
cal compromises, but was also peppered with concepts
and terms that were incongruous with the existing legal
framework of the climate regime.105 In Rio+20, on the
other hand, the Brazilian Presidency took over the
process from the working groups, drafted a careful and
unambitious text that did not cross any ‘red lines’ of
significant parties, and presented the result as a final
package, ‘take it or leave it’. Brazil (correctly) assumed
that the ambitious parties would agree to a text with
very little in it for them, and difficult issues were
pushed to further negotiations in the UN General
Assembly. Virtually no intensive negotiations took
place on the final day of the Rio meeting, no calls were
made late at night to capital cities, and the role of the
ministers or heads of State and government was
reduced to signing the package. The diplomatic skills of
Brazil have been rightfully lauded,106 but the meeting
also left many wondering about the point of having
political decision makers involved in the meeting at
all.107
PRESIDENTIAL STRATEGIES
To summarize the views of the experts interviewed for
this article, the critical functions of the President can be
clustered into three categories: ‘deal-brokering’, where
a clear vision of what is possible and how to obtain it is
needed; ‘gavelling’, signalling when the consensus has
been reached, and using the accumulated legitimacy as
the President to push reluctant parties; and strategic
messaging, where the Presidency communicates – and
repeats – what is possible and not possible in a given
meeting.108 If the Presidency does not have these clas-
sical skills, it is possible and even probable that the
parties will take over. Weaknesses in deal-brokering
resulted in parties taking over, for example, Bali COP13,
where the Presidency and Secretariat lost track of infor-
mal consultations.109 Insufficient skills in gavelling
played a notable role, for example, in Copenhagen
COP15 and Doha COP18, in which the final form of the
package and its adoption did not take place under the
guidance of the Presidency. The Brazilian example from
the Rio+20 meeting noted above, on the other hand,
serves as a rare example of a well-prepared effort and
diplomatically skilled Presidency with low ambitions.
In deal-brokering, an ‘open and inclusive process’ in the
COP may seem to be a highly desirable and legitimate
ideal, but as anyone familiar with the UNFCCC nego-
tiations can attest, it is also time-consuming. The Presi-
dency has to complement the inclusive plenary work by
convening small groups for informal exchanges of
100 Similarly, A. Vihma and K. Kulovesi, n. 13 above.
101 See M. Khor, n. 57 above.
102 Participatory observation, n. 14 above.
103 P. Doran et al., ‘Summary of the United Nations Conference on
Sustainable Development, 13–22 June 2012’, 27:51 Earth Negotia-
tions Bulletin (2012), 1.
104 For details, see P. Meilstrup, n. 94 above, at 131.
105 See J. Depledge and P. Chasek, n. 3 above, at 29.
106 See P. Doran et al., n. 103 above, at 22.
107 Analyst Tom Bigg from the International Institute for Environment
and Development, for example, sourly points out that: ‘The Brazilians
cut the Gordian knot by substituting in a “take it or leave it” commu-
niqué which stripped out any strong commitments but (as a result)
could be endorsed by all. This was enormously attractive because it
avoided a Copenhagen-style collapse and allowed leaders to talk
glibly about the successful outcome.’ See T. Bigg, ‘Five Things We
Have Learnt from Rio+20’ (3 July 2012), found at: <http://
www.iied.org/five-things-we-ve-learnt-rio20>.
108 Personal interviews. n. 15 above.
109 Ibid.
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9
ideas. According to the experts interviewed for this
article, the relevant lessons contributing to the success
of this work are: (1) organizing these gatherings as
informal meetings under the responsibility of the Presi-
dency; (2) carefully selecting the topics and the coun-
tries invited; (3) leaving the door open to everyone,
even if the invitation is only for countries deemed rel-
evant for a particular topic; and (4) informing the
plenary meetings of the informal consultations held by
the Presidency.110
Several scholars have studied ‘trust-building’ and inno-
vative techniques for enhancing cooperation. When the
stakes are high, as is the case with the crunch meetings
of the UN climate regime, these techniques face serious
limitations.111 One expert interviewed for this study also
noted that ‘trust’ has an overly personal ring to it, and it
implies that ‘we have a shared goal and shared inter-
ests, which we do not have’. In this regard, it is more
productive for the Presidency to focus on consistency,
transparency and an understanding of where parties’
key interests lie. During the real negotiations within a
hectic meeting, the COP President and key Chairs will
revert to being individuals in the end. Several successes
have been personified in the active leadership of one
person, such as Raúl Estrada for the Kyoto Protocol,
Tommy Koh for the Rio Declaration, Maurice Strong for
the Convention and, more recently, Patricia Espinosa
for the Cancún Agreements. The importance of indi-
vidual leaders in strategically guiding delegates to iden-
tify points of convergence has also been recognized by
scholars.112
For gavelling, the timing of proposing a new text and
conducting informal meetings is important in order not
to trigger unnecessary negative reactions. The Presi-
dency must carefully consider ‘when would be a good
time to have the Like-Minded Developing Countries
and the Umbrella Group in one room’.113 The Presi-
dency, Secretariat and officers should work to prevent
parties from locking into positions too early, under-
standing their underlying concerns, avoiding submit-
ting texts too soon, as well as not considering legal texts
(draft decisions) too early. Several of the interviewees
noted that there needs to be a greater investment in
getting convergence at the level of concerns before cap-
turing it.114
In this article, I have mostly addressed the issues that
can be filed under gavelling and deal-brokering.
However, an important aspect of the role of the Presi-
dency is the strategic messaging and expectation man-
agement before and during the COP.115 In Copenhagen,
where the stakes were the highest thus far in the climate
negotiations, politicians feared that playing their hand
poorly would lead to enormous political and economic
consequences domestically. Such fears, coupled with
the complexity of the climate agenda, may lead to coun-
tries stepping on the brakes. In the recent moderately
successful meetings, such as the Bali, Cancún and
Durban COPs, the stakes have been lower. A key role for
the Presidency is therefore communicating on the
expectations for the meeting so that parties and the
public have a somewhat shared idea of feasible out-
comes. This should be duly recognized by forthcoming
Presidencies of crunch meetings, such as the French
one in 2015.
Finally, a crucial question to consider is whether there
are ways to encourage the continuation of best practices
in gavelling and messaging, given the rotating nature of
the COP Presidency. According to one expert, some
Presidencies have felt ‘unsupported’ by the UNFCCC
Secretariat, and there is a need for more training as well
as transparent and consistent legal support.116 Along-
side the recognition of the leadership and clarification
of the roles of the President and other officers, Presi-
dencies need increased support and high-quality
advice. This support should be transparent and consis-
tent, and clearly answer the main decision-making con-
cerns: Can the Chair call a vote, and when can a
decision be gavelled? Clarity and transparency are cur-
rently needed, as both Presidencies and Parties are
often ‘fearful and uncertain about the process’.117
CONCLUSIONS
There is a pressing need to clarify, institutionalize and
increase the efficiency of the work of the UN climate
negotiations. This task starts with a systematic search
for possible solutions and the political will to embark on
a long battle to push them through. This article under-
scores the importance of COP decisions: although they
lack a formal legally binding character, they have the
potential for far-reaching political and legal conse-
quences. COP decisions are limited by the underlying
treaty and national legislation – the more ambitious
they become, the more likely they are to trigger legisla-
tive procedures. However, a time-consuming and
uncertain ratification process can, in many cases, be
avoided. The importance of COP decisions is further
underscored by the functions and challenges of
the upcoming negotiations, which will aim at
operationalizing a potentially rather loose agreement
110 Ibid.
111 D. Davenport et al., ‘Earth Negotiations on a Comfy Couch: Build-
ing Negotiator Trust through Innovative Processes’, in: P. Chasek
and L. Wagner, n. 3 above, 39.
112 See, e.g., a recent analysis in the context of Minamata Conven-
tion: J. Templeton and P. Kohler, ‘Implementation and Compliance
under the Minamata Convention on Mercury’, 23:2 Review of Euro-
pean, Comparative and International Environmental Law (2014), 211.
113 Personal interviews, n. 15 above.
114 Ibid.
115 Ibid.
116 Ibid.
117 Ibid.
ANTTO VIHMA RECIEL •• (••) 2014
© 2014 John Wiley & Sons Ltd
10
from 2015 onwards, and coordinating the work of
various specialized bodies working on finance, technol-
ogy and adaptation, as well as establishing relation-
ships with various international cooperative initiatives.
It does not seem to be politically feasible to address the
lack of majority voting in the decision-making of the
UNFCCC. Voting is thus highly unlikely to become a
practice used to resolve most of the outstanding issues
and problems related to COP decision making. Some
analysts see that recent experiences, especially the final
plenary of the Doha meeting and the procedural wran-
gling of the recent intersessional negotiations, indicate
that there may be an opportunity to use a procedural
crisis to revitalize the discussion on majority voting.118
However, there are many failed intersessional meetings
and COPs in the history of the UNFCCC, and these have
not triggered profound reforms to address the chaos
caused by the consensus requirement and other unclear
practices.
A vote of confidence in procedural matters and electoral
voting, as well as informal soundings, could be intro-
duced, if necessary, by strong and able Presidencies.
However, the political reality calls for extra attention to
consensus building. In spite of the ongoing efforts to
define the practice of consensus on paper in the
UNFCCC, consensus will remain undefined and con-
sensus building will continue to face serious problems
when dealing with parties that do not, after consider-
able efforts exerted by others, engage in the negotia-
tions. The idea and interpretation of consensus is likely
to keep evolving through the practice of COP decision
making. Currently, it allows for some notable flexibility
in defining ‘consensus’, but using this political space
requires a skilled, ambitious and hard-working Presi-
dency. The political capital of the Presidency to overrule
objections is built up over the course of the year and
through informal negotiations.
To quote one of the experts interviewed: ‘It is clear that
the Convention was drafted by environmentalists and
not by diplomats.’119 This condition also makes the role
of the Presidency particularly relevant. The climate
negotiations themselves are so complex, with a variety
of meetings and topics, that if the Presidency does not
have a very clear idea of what it wants to achieve – and
how it wants to achieve it – the process may become a
frustrating and ineffective talking shop. There is a
serious risk of stretching the ‘consensus’ too far with an
unskilled Presidency, which may lead to a subsequent
political backlash that erodes the legitimacy and effec-
tiveness of the UNFCCC. Overstretching and unskilled
timing of the use of Presidential power in general
quickly leads to parties becoming cautious and repeat-
ing the well-rehearsed speeches about a ‘party-driven
process’. Different Presidential strategies would be a
fruitful area for further comparative research, both in
the UNFCCC context and in international environmen-
tal law more generally.
As noted by one interviewee, ‘there is only so much
policy one can do’, indicating that there will always be
‘in-between COPs’, meetings that are not intended to
make major breakthroughs but that provide stepping
stones on the way to other conferences. For these meet-
ings, there is no need to embark on a great diplomatic
initiative. Perhaps in due course the UNFCCC can
follow several other multilateral environmental agree-
ments and make its COPs biennial – but this is cur-
rently neither feasible nor desirable, as the regime is
still looking its role in the larger whole, having just
begun to experiment with specialized bodies, and
considering linkages to international cooperative
initiatives.120
This article argues for enhancing consensus-building
via the leadership of the Presidency, expectation man-
agement, transparency and tested methods of diplo-
macy to achieve more systematic and efficient COP
decision making. Unfortunately, the indispensable
leadership role of the Presidency has been lacking on
many occasions and it is certainly not fully recognized
by all member States. Therefore, in the history of the
UNFCCC, each Presidency with an ambition has had to
struggle to obtain the leadership position and decide for
itself how to play this role. The role of the Presidency
should be recognized and institutionalized. The Secre-
tariat and key parties should push for continuity in the
best practices of the COP Presidents and increased
support for them. This task is by no means easy, and
will require sustained political effort. An open yet stra-
tegic consultation process and assuming a neutral role
can help the Presidency to build sufficient understand-
ing and political capital to overcome obstacles within
the negotiations. In this way, we can lay the ground-
work for achieving the full potential of the UNFCCC in
global climate governance.
Antto Vihma works as a Senior Research Fellow at the
Global Security Programme of the Finnish Institute of
International Affairs, Helsinki, Finland, and as a writer/
editor for the Earth Negotiations Bulletin. He specializes
in the politics of international law, climate policies and
energy in external relations. His academic articles have
been published, inter alia,inRegulation and Gover-
nance,Journal of Environment and Development and
Carbon and Climate Law Review. He is also the author
of several policy briefs on climate and energy issues.
118 For this optimistic perspective, see L. Kemp, n. 22 above.
119 Personal interviews, n. 15 above.
120 For arguments to reduce negotiating sessions in the UNFCCC
system, see A. Vihma and K. Kulovesi, n. 13 above, at 245–247.
RECIEL •• (••) 2014 CLIMATE OF CONSENSUS
© 2014 John Wiley & Sons Ltd
11
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20 Ibid., at 656. 21 Similarly, Brunnée highlights that the legislative role of COPs is 'not confined to instances of formally binding decision-making
American Journal of International Law (2000), 623. 20 Ibid., at 656. 21 Similarly, Brunnée highlights that the legislative role of COPs is 'not confined to instances of formally binding decision-making'. J.
82 above. 85 Rules of Procedure, n. 52 above
  • See J Depledge
See J. Depledge, n. 82 above. 85 Rules of Procedure, n. 52 above. 86 Ibid., Rule 22.1. 87 A. Vihma and K. Kulovesi, n. 13 above. 88
3 above, at 12. 89 Personal interviews, n. 15 above. 90 COP6 in The Hague reached no formal outcome, only an understanding that the talks would later resume. At COP15 in Copenhagen, the chaotic final plenary only 'took note
  • See J Depledge
See J. Depledge, n. 3 above, at 12. 89 Personal interviews, n. 15 above. 90 COP6 in The Hague reached no formal outcome, only an understanding that the talks would later resume. At COP15 in Copenhagen, the chaotic final plenary only 'took note' of the Copenhagen Accord.
Summary of the Fifth Conference of the Parties to the Framework Convention on Climate Change
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P. Bettelli et al., 'Summary of the Fifth Conference of the Parties to the Framework Convention on Climate Change', 12:123 Earth Negotiations Bulletin (1999).
  • Doran
Doran et al., 'Summary of the United Nations Conference on Sustainable Development, 13–22 June 2012', 27:51 Earth Negotiations Bulletin (2012), 1. 104 For details, see P. Meilstrup, n. 94 above, at 131. 105