Consensus, legality and power - in Cancun and after it

By Christoph Schwarte, FIELD Staff Lawyer, for Outreach - a multi-stakeholder magazine on environment and sustainable development, 

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The UN Climate Change Conference in Cancun ended with the adoption of a package of decisions (referred to as the “Cancun Agreements”). Despite the vocal objections of the Bolivian delegation, the chair (and other parties) took the view that a consensus decision could be made.

Bolivia has subsequently stated that it will not back down and launched a legal challenge at the International Court of Justice (ICJ) in The Hague. Such a challenge would essentially be based on the alleged violation of procedural rules – i.e. the lack of complete consensus.

Decisions by “Consensus”

Since the first meeting of the Conference of the Parties (COP) to the UN Framework Convention on Climate Change (UNFCCC) in 1995, parties could not agree whether decisions on matters of substance (excluding financial matters) should be taken by consensus only. An alternative suggestion is that after parties have exhausted all efforts to reach consent, the decision - with certain exceptions –may be taken by a two-thirds majority vote. As a result, and in line with the established international practice, the parties to the UNFCCC and the Kyoto Protocol have always taken their decisions by consensus. A judicial review of the process followed in Cancun would need to interpret what is meant by “consensus” and whether it requires unanimous support.

For that purpose, the ICJ (or any other dispute settlement body) would probably examine the previous practice of the COP. Although there has not always been full agreement between the parties in the past, the overruling of Bolivia’s persistent objections may be without precedent. That said, it is unlikely that an international judicial organ would question the validity of the Cancun decisions based on a procedural infringement.

Legality and power operating on an equal footing

Public international law is subject to a constant tension between established rules and the pressure to make changes within a system. Consequently legality and power often operate on an equal footing. The UN Charter (Article 27 para.3), for example, explicitly provides that Security Council decisions shall be made “by an affirmative vote of nine members including the concurring votes of the permanent members”. Nevertheless, these days it is fully accepted that the five permanent members of the UN Security Council only enjoy a veto right. So abstention is effectively interpreted as an affirmative vote.

The main reason, however, why the Bolivian concerns are unlikely to go beyond the initial legal sabre rattling is the lack of a competent forum. While the ICJ is the principal judicial organ of the United Nations, it can only deal with legal disputes if and to the extent that the states concerned have accepted its jurisdiction. To date, Bolivia has not recognised ICJ jurisdiction - neither under the UNFCCC (Art.14) nor under the Statute of the ICJ (Art.36).

Consequently, the ICJ could only hear the dispute if other UNFCCC member states agreed to refer the case to the Court – an unlikely scenario. The only possible avenue that would allow Bolivia to force other parties into dispute settlement through an independent institution therefore appears to be the establishment of a conciliation commission after 12 months (in accordance with Art.14 UNFCCC).

The Cancun Agreements: a set of political commitments

But does all this really matter a great deal? In general, legal scholars and parties agree that COP decisions lack legally-binding character. Consequently, the Cancun Agreements represent a set of political commitments similar to the UN Millennium Development Goals or the financial commitments made at the Gleneagles G8 summit.

In international relations legally binding obligations as such are rarely a guarantee for success. But coupled with a system of “naming and shaming” or even enforcement they can provide a strong incentive for compliance. They may also allow for legal challenges and give civil society additional leverage to hold governments accountable.

The Cancun Agreements have therefore been portrayed as a stepping stone to a legally binding deal. The COP has stated that its decision in Cancun shall not “prejudge prospects for, or the content of, a legally-binding outcome in the future”. But in some areas it may feel that the necessary frameworks have now been created and that the parties will not need to revisit old ground.

A Green Climate Fund: a lack of clarity about its sources

For example, a Green Climate Fund, through which a significant share of new multilateral funding for adaptation should flow, has been established with little clarity about its sources of funding. Following the adoption of the Bali Action Plan many Least Developed Countries and members of the Alliance of Small Island States supported the establishment of a mechanism for adaptation funding that would not only provide adequate, predictable and additional resources, but also link financial contributions to a countries’ responsibility for green house gas emissions. In their view, the new mechanism should deviate from the traditional model of charitable aid (which has often been an impediment to sustainable development) and incorporate the legal obligation of the polluter to pay for damages.

The submission to international jurisdiction and sovereign rights

Whether it is the acceptance of majority voting decisions, the submission to international jurisdiction or taking responsibility for environmental destruction the climate change negotiations demonstrate the reluctance of states to give up sovereign rights and subordinate the perceived national interest to effective international authority. But if the threat of climate change does not create a better understanding of the benefits of robust international law and clear frameworks for global environmental justice – what will?