What’s the deal with the [brackets] in rule 37?
PUNTA DEL ESTE, 30 NOVEMBER 2022: Ambassador Gustavo Meza-Cuadra’s tenure as chair of the Intergovernmental Negotiation Committee to end plastic pollution had only just begun when Saudi Arabia took the floor to propose a change to the Committee’s draft rules of procedure. The newly elected chair did not look happy.
It concerned unfinished business from the Committee’s preparatory meeting — more formally referred to as the ad hoc open‑ended working group — in Senegal six months earlier. The preparatory meeting had agreed on a draft set of rules of procedure for the negotiations. But the European Union (EU), vying for the right to vote on behalf of its 27 members, had been unable to secure agreement on the issue. As a result, rule 37 on voting rights had been left open, with three alternative formulations on how the EU would exercise its right to vote.
A partial deal had been struck between the EU and the United States on the eve of the Committee’s opening. The proposal suggested that the EU would indeed have the right to vote on its members’ behalf. It left in brackets, however, whether the number of EU votes would equal the number of EU members “participating in the Committee” or the number “duly accredited and present at the time of the vote”.
Keen to avoid a lengthy procedural discussion at the start of his chairmanship, Ambassador Meza-Cuadra quickly suggested that the Committee “provisionally apply” the draft rules of procedure as agreed in Senegal and resolve the bracketed text in the committee’s backrooms.
“I see no objections. It is so decided”, he said, while sealing the decision with a slight tap of his ersatz gavel.
But the Ambassador had acted too quickly. A few seconds after the sound of the gavel had faded in the conference centre in Punta del Este, the Committee’s éminence grise — UNEP legal adviser Stadler Trengove — leaned over to inform him that Saudi Arabia had requested the floor. The ambassador had no choice but to acquiesce.
Wishing, they said, to “maintain all views expressed” when the draft rules of procedure were discussed in Senegal, Saudi Arabia requested to expand the brackets to the entirety of the paragraph related to the EU’s voting rights.
At first glance, an innocuous proposal. But of course, in multilateral treaty-making, nothing is innocuous, especially when it comes to rules of procedure. A proposal to move a bracket from one place to another in a text can have major consequences for the elaboration of the treaty. Saudi Arabia knows this.
It quickly became clear that challenging the location of two brackets was part of a broader scheme. One after another, Qatar, Bahrain, and Egypt stepped up in support of the Saudi proposal, while China, in an awkward back-and-forth with an increasingly exasperated chair, proposed to place the entire rules of procedure in brackets.
Backed by Senegal and the United States — and an elaborate intervention by legal adviser Trengove — Ambassador Meza-Cuadra made a last-ditch attempt to avoid the inevitable by striking his gavel again, claiming that the “issue is clear”, and moving on to the next item on the agenda.
But Saudi Arabia and China wouldn’t have it. As they interrupted the chair again, this time to request “more time to consider the issue” and — twice — to petition the chair to confirm that their comments “had been captured in the new proposal” it was clear that discussions on the rules of procedure that should govern the negotiations had been reopened.
Saudi Arabia has not made public their reasons for forcing a reopening of the rules of procedure. It is no secret, however, that Saudi Arabia would like to reserve for itself the possibility of blocking the adoption of the treaty. At the preparatory meeting in Senegal, Saudi Arabia said, in no unclear terms, that “decisions under this treaty […] should be adopted by consensus, meaning no standing objection by any party can be ignored for a decision to be made”.
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.
This, one may suspect, is the real reason for Saudi Arabia’s intervention. Whether their ploy can succeed will likely depend on other delegations’ ability to get the measure of the plan.
By Magnus Løvold and Torbjørn Graff Hugo, Norwegian Academy of International Law (NAIL)
For more on the plastic pollution treaty negotiations, see Earth Negotiation Bulletin’s reporting from the meeting.
