Finding consensus on the climate crisis

“Despite the differences in circumstances and representations, one overarching goal remains – one that will benefit all the Parties involved”

The first week of the 27th Conference of the Parties (COP 27) of the United Nations Framework on Climate Change has now passed.

The world awaits the decisions that will be made here.

The challenge as always is finding consensus on the contentious issues.

Here in Sharm El-Sheikh, Egypt, it is the creation of a loss and damage mechanism that is so critical for countries like the Philippines which is now the country most threatened by climate change.

Interestingly, as I wrote a few years ago with Parabukas and University of the Philippines Law Center colleague and fellow University of Makati environmental law professor Niner Guiao, there has been no definition of consensus in any of the provisions found in multilateral environmental agreements.

One United Nations legal instrument that defines it is the 1982 Convention on the Law of the Sea, which states that consensus is “the absence of any formal objection.” The Merriam-Webster online dictionary definition of consensus, on the other hand, is of “general agreement,” or a “judgment arrived at by most of those concerned.”

In Multilateral Environmental Agreement (MEA) processes, the UNFCCC included, consensus alludes to the definition indicated in the UN Convention on the Law of the Sea, referring merely to the absence of objections from any of the parties.

No formal voting requirement is required, for as long as no objection is raised by any of the parties concerned.

It is only in the event of a formal objection that consensus is blocked.

In practice, however, parties usually try to resolve known objections before such matters are brought before plenary.

Oftentimes meetings are suspended for a few minutes, in order to allow certain parties to “huddle” and attempt to resolve difficulties on their own.

The climate change regime is a formal one, with legally binding commitments, procedures and processes that are both similar and unique in comparison to other MEAs. It has taken a life of its own after the UNFCCC was adopted, and its annual COP has perhaps the highest attendance among those of other multilateral agreements.

In 2009, for instance, registration for the 15th COP held in Copenhagen reached approximately 45,000 people, the highest for any COP ever held.

Here in Sharm, nearly 30,000 registered.

In both cases, government delegates would number a quarter of those here while the rest are observers from civil society, the development community, business groups, science organizations, indigenous peoples, etc.

What must not be forgotten in the maze of treaty provisions and procedures, however, is that the entire regime is built upon human beings trying to represent the interests of their own constituencies.

The bottom line is that as one negotiates for what would best serve his or her country, the negotiation process builds on relationships between the different country delegations, and the relationship of these delegations with their constituencies.

Being forthright would build trust and inspire respect.

The UNFCCC negotiations should not be treated like a game of one-upmanship.

Despite the differences in circumstances and representations, one overarching goal remains – one that will benefit all the Parties involved.

As in any other venue or setting, everyone must be treated with respect. There should be a presumption of good faith, which will allow parties to make efforts towards compromise more willingly.

Trust-building is also absolutely essential and will pave the way for a satisfactory outcome for all.

As negotiations draw to a close and tensions run high, the trust that has been fostered will help parties to disregard rumors and actively work towards the best possible outcome. Equally important in trust-building is transparency.

Governments need to open up processes and listen to their constituencies at home and here in Sharm El-Sheikh.

I am glad that the Philippine Delegation to COOP 27 led by Environment Secretary Toni Yulo-Loyzaga has been transparent and cordial in their interaction with those of us from civil society here in Egypt.

Secretary Yulo-Loyzaga also made us proud in her competent facilitation of a major climate finance meeting last Wednesday.

She partnered with her German counterpart, the special representative for international climate policy of that country.

Loyzaga and Morgan are my long-time colleagues and good friends. I was proud and happy to see them take their leadership role in COP 27.

As I said in my last column, this is my 23rd COP. I have worked on this issue for 30-plus years starting when I chose the issue of climate change as my doctoral dissertation at Yale Law School in 1991.

Much has changed then. The problem has gotten worse and has reached emergency and crisis levels.

There are so many things also being done as we are witnessing in the many events and pavilions here – but they are not enough and we are still failing.

But I have hope. And this is because in the tens of thousands of delegates who are here are quite a lot of youth activists.

As I do in all COPs, I met with the young Filipinos who are here in COP 27 and they inspire me to continue this work until I am still physically able to do so.

This is an intergenerational mission and I am happy to see that the next generation is going to be better than we are in achieving in their lifetimes climate justice.

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