Global Environmental Law at a Crossroads

The Limits to Consensus-Based Decision-Making

Ceremonial Mootcourt Room

In our paper, we will review decision-making under multilateral environmental agreements. Taking the deadlocks at the UNFCCC meetings in Copenhagen and Cancun as the point of departure, the paper will trace the rulebs and practice of global multilateral environmental agreements that were concluded before the 1992 United Nations Conference on Environment and Development (UNCED) and allow for decision-making by majority vote. Even though the rules of these agreements allow for decision-making by majority vote, the practice in the context of most of these agreements is to avoid voting at all costs or even to abandon decision-making by majority vote in favor of consensus-based decision-making. In contrast, the inability of states to agree on voting rules under multilateral environmental agreements since the 1992 UNCED makes consensus-based decision-making imperative by default. Although decision-making under these agreements has been successful for many years, the threat of a single state or a limited group of states to block decision-making has become reason to question the effectiveness of consensus-based decision-making. Even when consensus can be reached, it often, unfortunately, reflects no more than the lowest common denominator. Pressure placed on isolated states will frequently result in them agreeing to join consensus, while lodging formal objections intended to prevent the adoption of the very decisions they tolerated or “supported.” In spectacular showdowns, presidents of meetings have on occasion overruled formal objections and declared decisions adopted. Such dilemmas have raised a number of legal questions, and legal opinions attempting to answer these questions have stretched and contorted the rules of procedure to ludicrous extents (a sort of legal “hokey pokey”) in the effort to validate adopted decisions. It will need to be ascertained – objectively – whether decisions reached in such procedural quagmires are valid or null and void (or even whether logic and fairness demand that valid decisions be nullified). The authors will argue that global environmental problems require global action, global action can only be achieved by consensus-based decision-making, and consensus-based decision-making depends on respect for the rules of the game.