A key step in negotiating an international agreement is figuring out how to resolve disagreements. Different institutions and conventions have different ways to do this. Some institutions, such as the Montreal Protocol that deals with ozone-depleting substances, require substantive decisions to be made by a two-thirds majority vote. Others, like the Basel Convention on transboundary movements of hazardous wastes, ask negotiators to “make every effort to reach agreement on all matters of substance by consensus” before resorting to a two-thirds majority vote. Either way, a formally adopted set of voting rules provides a mechanism to move beyond differences and get things done.
But many international treaties require a consensus to adopt formal rules of procedure, which means there is no way to resolve disagreements over how to resolve disagreements. Countries who want to obstruct progress can block the adoption of a voting mechanism. Without a voting mechanism to resolve disagreements, all future decisions have to be made by consensus too, leaving opportunities for more obstructions at every turn. UNFCCC famously never formally adopted any rules of procedure because of obstructions by petrostates. All 29 COPs to date have been using a draft set of rules on a provisional basis, with a carve out that prevents voting on key decisions. This has worked well for obstructionist petrostates to stall global climate actions.
As you would expect, when 184 countries got together to negotiate a new global treaty on plastic pollution that threatens one of the last remaining fossil fuel demand drivers, petrostates pulled the same trick again. At the first negotiation session (INC-1) in Paraguay, Saudi Arabia, supported by its petrostate peers of Bahrain, Egypt, Qatar and Russia, raised a ruckus over a rule (rule 37) about how EU can vote on the behalf of its members, with the true intention of blocking the formal adoption of the full set of rules that include rule 38 which establishes voting by a two-thirds majority as a last resort for making decisions. Magnus Løvold wrote at the time:
It seems unlikely that Saudi Arabia’s proposal to move the brackets in rule 37 is motivated by a genuine concern with how regional economic integration organisations exercise their voting rights. Much more likely, the proposal is but the first step in a stratagem to forestall any attempt to take the Committee’s work to a vote in the first place.
The possibility of bringing an issue to a vote in the negotiations is enshrined in rule 38 of the draft rules of procedure. An argument can be made that as long as there are unresolved issues related to voting rights in rule 37, the Committee cannot apply rule 38, even if the rest of the rules have been provisionally applied. That is to say, it is highly unlikely that voting would take place as long as there is bracketed text in rule 37. In this scenario, the plastic pollution treaty could fail and end up in an eternal diplomatic gyre.
As a result of these efforts, INC-1 couldn’t formally adopt the rules of procedure but agreed to apply it “provisionally” to future sessions. At INC-2, a few countries (most notably Saudi Arabia, India, Brazil, and Russia) objected the “provisional” application of rule 38, and only relented after an interpretative note was adopted to state that “the provisional application of rule 38 […] has been a subject of debate” and “[i]n the event that rule 38 […] is invoked before the rules are formally adopted, members will recall this lack of agreement.” With that, once again, INC went on to negotiate a global treaty without formally adopting any rules of procedure.
Technically, rule 38 still applies “provisionally” and the principal legal officer of UNEP confirmed that this provisional rule has legal effect. But the strong objection to rule 38 by some countries means no one, including the chairperson of the negotiation, wants to re-open such a can of worms by calling for a vote. After failing to reach an agreement by consensus at its fifth session in Busan last year because of disagreements over plastic production caps, INC extended the fifth session to Geneva where, somewhat predictably, negotiators once again failed to reach a consensus over the same issues, yet the chairperson really don’t want to call for a vote:
At a press conference, [INC Chair] Vayas Valdivieso said the committee would continue to work with a consensus-based approach. “We are not preparing for a vote, our mindset is to be able to reach an agreement in a cooperative manner. We have worked with this constructive spirit during previous INC sessions, including at the INC-4 in Ottawa, where negotiations began,” he told journalists.
“Although we have encountered obstacles in the negotiation text, a collaborative spirit and compromise between member states was evident. I said it then and I repeat it today: this constructive, consensus-based approach strengthens the agreement and lays the foundation for an international instrument,” he said.
He fought hard at INC-2 to keep the provisional rule 38, but no matter how certain he feels about the legal validity of rule 38, it won’t work if others reject it. Much of international law is like Tinker Bell: it exists if and only if we believe in it.