Points of disorder
PARIS, 29th May 2023: No one had expected it to be easy, but the level of procedural drama that unfolded as the second round of the plastics treaty negotiations commenced in Paris on Monday morning must have caught even the most disillusioned diplomat off guard.
The meeting had only just begun when a statement by Romania on behalf of the Eastern European States brought Russia’s representative, Vladimir Lenev, to his feet, vigorously signaling for a point of order.
Oh not again, the chair of the conference, Ambassador Gustavo Meza-Cuadra, must have thought.
“The representative of Romania does not have the right,” Mr. Lenev claimed, “to make any statements on behalf of the Eastern European States at this session.”
It was a moot point, really. During a meeting in Nairobi a few months earlier, the Eastern European States had voted to nominate Estonia and Georgia as their representatives in the bureau of the plastics treaty negotiations. However, according to Russia, a member of the group, the representatives in Nairobi were “not authorized to make any decisions regarding candidates for election positions” in the plastics treaty negotiations, since these negotiations constitute “an independent structure.”
In the end, Russia’s procedural objections merely served to delay the start of substantive negotiations and, perhaps, promote Mr. Lenev’s own candidacy for a bureau seat. Regardless of the validity of the decision made by the Eastern European States’ in Nairobi, Estonia and Georgia were duly elected to represent these states in the plastics treaty negotiations. Unfortunately for Mr. Lenev, Russia’s objections to the nominations of Sweden and the United States to represent the Western European and other States in the bureau did not yield any results either.
But if Mr. Lenev lost the battle for the bureau seats, he was not prepared to lose the procedural war that ensued. He must have predicted that by contesting the bureau elections, he would provide Saudi Arabia and other countries concerned about the growing support for strong plastics treaty with a golden opportunity to ramp up their campaign against the majority voting option in the draft rules of procedures, which had been provisionally applied during the first negotiation round in Uruguay but remained unadopted.
No sooner had Mr. Lenev concluded his intervention than the representative of Saudi Arabia raised another point of order, questioning “how the voting process will be taking place” without the rules of procedure formally adopted. Wary of the precedent that a vote on bureau seats could set for the negotiation process, Saudi Arabia requested “clarification” and “assurances” from the chair that the vote to elect bureau members would constitute an “exceptional circumstance” and that “the rule will not be abused in the future.”
Ambassador Meza-Cuadra and UNEP’s Legal Adviser, Stadler Trengove, proved unable to stem the outburst of love for the rule of consensus that ensued. As China, Brazil, Iran, Argentina, Russia, and India all lined up to take the floor in support of Saudi Arabia’s demand for clarification, it became increasingly clear that the battle for the rules of procedure was on.
Brazil, in a hardball maneuver, called for the draft rule allowing for decisions to be made by a vote as a last resort to be placed in brackets, stating, “we are not going to contact groups, we are not considering mandates for draft text, we are not doing anything else until we see the brackets”.
Fortunately for Ambassador Meza-Cuadra, he was not alone in defending the draft rules of procedure as provisionally applied. “Consensus kills democracy”, the representative from Senegal countered, eliciting sustained applause from the audience. A long list of European and Latin American countries also supported the chair’s position, with Switzerland making the point that “being able to vote as a last resort is often helpful to achieve consensus.”
For those who had been wondering how procedural debacles can unfold in multilateral treaty-making processes, the opening day of the second round of negotiations was a crash course like no other. For those who had hoped the chair’s initial plan of moving “swiftly” to substantive discussion might actually work, the opening day of the second round of negotiations turned out to be a rather frustrating affair.
Could all this have been avoided if the United States and the European Union had been able to hash out a clean compromise text for Rule 37 in Senegal one year ago? Or were the remaining brackets and options in that rule just a pretext for a discussion that would have wedged its way into the negotiations regardless? One can only speculate, but at this point, a battle over a formal consensus requirement on substantive matters seems inevitable.
The question that looms largest in the days ahead is whether the negotiation committee will be able to adopt a set of rules that do not require formal consensus — by consensus. Or whether it will have to resort to the only real tool left in the toolbox: a vote.
By Magnus Løvold and Torbjørn Graff Hugo, Norwegian Academy of International Law (NAIL). Follow our reporting from the Plastics Treaty negotiations on Points of Order.
