by Professor Wend Wendland, Adjunct Professor, Faculty of Law, University of Cape Town
Multilateral Matters
An occasional blog on international developments related to intellectual property, innovation, development and public policy
Key Points
In multilateral negotiations, in which up to 200 countries participate, most decisions are meant to be taken by “consensus”.
“Consensus” means the absence of opposition. “Unanimity”, on the other hand, means that all parties approve the decision.
In majority voting, all countries have an equal vote. However, voting creates “winners” and “losers”.
By contrast, consensual decision-making aims at reaching an overwhelming agreement among everyone at the table, maximizing joint gains and coming as close as possible to meeting the underlying interests of all countries. Decisions by consensus build a sense of cohesion, solidarity and joint ownership.
However, in practice, in consensual decision-making less powerful countries may not be able to or wish to express their objections. In some ways, consensual decision-making is, therefore, less democratic than voting.
Furthermore, achieving consensus in multilateral negotiations is proving an insurmountable obstacle, especially negotiations aimed at agreement among all countries on a detailed and legally binding treaty or convention. Some negotiations have not been able to conclude in over 20 years. There are also other disadvantages to consensual decision-making.
It is useful therefore to explore ways in which to relax the consensus principle and/or reduce the number of countries participating in a negotiation (by, for example, concluding plurilateral agreements). Additionally, it might be easier to achieve full consensus on outcomes that are not detailed, legally binding treaties and conventions.
Procedural questions aside, failing multilateralism is, in essence, a failure of Member State leadership. There are several ways in which countries could strengthen multilateralism through more effective leadership.
Introduction
It is well-known that it has become extremely difficult if not impossible for countries to reach an agreement in multilateral negotiations on a wide range of policy issues, including in the areas of trade and intellectual property.
While the issues at stake are complex and broader geopolitical dynamics are at play, deeply entrenched patterns around how decisions are taken – and what kinds of outcomes are aimed at and how the negotiations are conducted – are also to blame.
In multilateral negotiations, usually involving around 200 countries, decisions are generally taken by “consensus”. In addition, there are many issues on the table, including sometimes un-related issues (introduced for purposes of creating leverage and “hostage-taking”). The negotiations often aim at coming up with a detailed treaty or convention that may take many years to come into force (and sometimes never do so because countries, having “agreed” to them at the negotiation, don’t subsequently ratify or accept them[1]). Furthermore, multilateral negotiations often adopt a single undertaking approach (described sometimes as “nothing is agreed until everything is agreed”).
This kind of consensus-based “all countries-all issues” mode of international norm-setting is outmoded and no longer fit-for-purpose. There are several reasons for this, including the growing number of countries and interest groups directly and indirectly involved and the complexity of the issues arising from the scale, speed and exponentiality of technological developments and the enormity of the global challenges facing the planet that require rapid and adaptable collective action (such as environmental collapse, migration, pandemics and climate change).
Yet, multilateralism is vital. Collective responses are needed to address global challenges for which all countries have a shared responsibility. And, effective, wise and durable collective responses are best achieved through collective decision-making in multilateral processes.
To overcome the current paralysis in multilateralism, intergovernmental negotiations need to be re-imagined in several respects, such as:
- why, by whom and how they are initiated,
- how they are conducted (the process),
- who participates,
- how decisions are taken,
- what diverse kinds of outcomes are aimed at, and
- how outcomes are enforced.
This blog discusses one element only, decision-taking by “consensus”.
Unpacking “consensus”
Although “consensus” is widely used to describe how decisions are made collectively in a range of human societies, the term can mean different things across culturally diverse constituencies and differing organizational settings. These may have different rules and traditions around what “consensus” means, how it is achieved and how participants and onlookers alike become aware that it has been reached.
Scholars distinguish between “consensus” and “unanimity” as forms of collective decision-making.
Consensus decision-making occurs when the participants themselves consciously and interactively close their deliberation about an issue at a specific moment in time by observing the absence of opposition to a proposal that thereby becomes the collective decision that obligates them to some collective action.[2] Urfalino describes this as the “rule of no opposition”.[3]
On the other hand, making decisions unanimously requires that each participant expresses his or her preferred decision option (voting) so that these preferences can then be compared, and only if all participants expressed the same preference does the chosen option become the decision.[4]
In other words, “consensus” means all participants, by virtue of there being no objection, are willing to tolerate the decision. There is a collective acceptance of the decision because no-one expresses disagreement. This may also be called “tacit consent”, or simply “consent”.[5] Urfalino refers to a “logic of consent”.[6]
“Unanimity”, on the other hand, means that all participants expressly approve the decision. There is a shared belief in the decision because everyone agrees. This agreement is often established and communicated by voting. Urfalino refers to a “logic of approval”,[7] and recalls that, in principle, decisions on non-procedural matters taken by the UN’s Security Council require unanimity of the Council’s Permanent Members.[8]
Although rules, practices and traditions differ across multilateral organizations and processes, in my experience at least, decisions in multilateral organizations are usually taken by “consensus”, in other words, in the absence of expressed disagreement.
For example, according to the Agreement Establishing the World Trade Organization (the WTO), the WTO “shall continue the practice of decision-making by consensus followed under GATT 1947.”[9] A footnote to that article explains: “The body concerned shall be deemed to have decided by consensus on a matter submitted for its consideration, if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision.”
As reaching consensus in the WTO has become more challenging for the kinds of reasons alluded to above, in many instances, negotiations are being conducted among a subset of the WTO’s membership, resulting in plurilateral agreements.[10]
In consensual decision-making, all countries are not equal
In many organizations, some decisions are taken by voting, either directly or only after efforts at achieving consensus have failed, and the majority thresholds required in voting may differ. This is the case, for instance, in the WTO[11] and Vogel cites other examples[12].
A drawback of majority-rule voting is that the deal that wins the day is the deal that most parties support rather than the most optimal deal for all parties. It creates “winners” and “losers”, a dissatisfied minority and an unstable outcome.[13]
But voting at least treats all parties as equal.
Urfalino observes that, after decolonization and as many newly independent developing countries joined the UN and other intergovernmental organizations, consensus became to be preferred by developed countries as they realized that it, rather than voting along majority lines, would preserve their influence.[14]
This is because in consensual decision-making, parties with less influence or resources tend not to participate actively or at all, and thus are absent or remain silent. Countries may either not be able to or wish to express their opposition. In such cases there is a greater likelihood of non-opposition. In practice, this means that decisions can be taken in the absence of poorer countries’ opposition. On the other hand, in voting, all parties have an equal vote and their positive approval is needed.
It may therefore be said that consensus decision-making can in practice be less democratic.[15]
How is consensus achieved?
Other questions relate to how the “absence of disagreement” is determined, by whom and when.
Haug describes four main ways in which he argues consensus is usually achieved. One of these he terms “deliberative”.[16]
Deliberative consensus-building processes are attentive to unvoiced dissent and to integrating all perspectives. In deliberative processes, outcome and process are equally important. A deliberative consensus-building process will include all the kinds of procedural measures and mechanisms designed to foster inclusivity and transparency that are familiar to those who participate in or facilitate intergovernmental negotiations. Moore and O’Doherty make a similar point by arguing that for consensus-building to have normative force, it must exhibit “deliberative equality” and “discursive diversity”.[17]
Deliberative consensus-building increases the chances that poorer and smaller countries’ perspectives are taken into account.
Imposed, acclaimed and basic modes
The three other ways of establishing consensus identified by Haug are “imposed”, “acclaimed” and “basic”.[18]
As its name suggests, “imposed” consensus occurs when the facilitator or chair assumes there is no disagreement or ignores signs thereof, and simply declares consensus has been reached. Dissenters have to forcefully disrupt the process to have their opposition taken into account.
In “acclaimed” consensus-building, there is an explicit slot for participants to express their views but its official purpose is not to express dissent but consent. A “no” is clearly the less preferred option. “Acclaimed” consensus-building is intended to produce a “sea of consent” in which dissenting voices easily get lost and are easily ignored – whether deliberately or not.
In the “basic” model, an opportunity is provided for dissenters to express their disagreement, but doing so is not encouraged.
It seems to me that the “deliberative” mode most closely resembles multilateral decision-making, at least the processes of which I am more familiar, but the “basic” and “acclaimed” modes also apply.
Disadvantages of consensual decision-making
While voting has its own share of disadvantages, consensual decision-making in intergovernmental organizations, even in “deliberative” mode, is fraught with difficulties.
The primary disadvantage is that consensus-building among close to 200 countries is extremely slow and seldom achieves an agreed outcome. Some negotiations are yet to conclude after more than 20 years.
Additionally, there is a risk of unvoiced dissent, especially where power relations between the parties are asymmetrical; by relying on “no objection”, the real preferences of countries may not become known and opportunities for identifying areas of agreement and trust-building may be lost; and, the resulting lowest common denominator outcome to which no country formally objects is often a mediocre outcome.
As Vogel puts it:
“The fact is that consensus obscures more than it reveals. It makes a fundamental and prior assumption that all parties have similar goals and expectations, and that they trust one another enough to work through disagreements publicly – and it removes potentially fundamental disagreements from the public debate.”[19]
He goes further to argue that decision-making by consensus is deceptive, inequitable and ineffective.[20]
The other major drawback to this form of consensus is that it grants each country a veto – no matter the size of the country and/or its genuine interest in the subject matter at hand. This allows for tactical blocking and hostage-taking and can prevent agile and timely decision-making.
Anecdotal information I have from my own experience is that on occasions where one or two relatively small countries (“small” in geo-political terms) have withheld their approval for a decision, the decision has nonetheless been gaveled through. This happened at the COP 16 on climate change in Cancun, the outcome of which has been described as “consensus minus one”[21]. In similar situations, I have also heard the terms “adequate consensus” and “democratic consensus”.
In fact, in these cases, the non-approval of a decision may been regarded as not as much a veto as a form of abstention. This can be a legitimate way for a country to indicate its preference without blocking consensus.[22]
Concluding thoughts
As consensus building involves seeking overwhelming agreement among everyone at the table, and maximizing joint gains – coming as close as possible to meeting all the underlying interests of relevant stakeholders – decision-making by consensus seems the best option in multi-party negotiations, especially given their political and diplomatic character. [23] Decisions by consensus build a sense of cohesion, solidarity and joint ownership of the decisions.[24]
Trying to achieve consensus in all countries-all issues negotiations is not working, however, especially in negotiations aimed at agreement among all countries on a detailed and legally binding treaty or convention. New ways need to be found for reaching decisions in a timely manner, and for producing meaningful outcomes that are effective, wise, implementable, sustainable and fit-for-purpose.
The consensus principle could be relaxed and/or the number of countries participating in a negotiation could be reduced (as is the case, for example, in plurilateral negotiations). Additionally, it might be easier to achieve full consensus on soft law outcomes that are not detailed, legally binding treaties and conventions.
Future blogs could examine these options further, as well as other aspects of current multilateral negotiations, such as how they are conducted (the process), who participates, the roles of coalitions and what diverse kinds of outcomes are aimed at.
No substitute for political leadership
Finally – these process questions aside, there is no substitute for political and substantive leadership.
Failures in multilateralism are really failures of leadership.
Whatever improvements are made to how negotiations are conducted, how decisions are taken and to expanding the range of possible outcomes, there is no substitute for member state leadership. This means, for example, that those countries which wish a particular outcome are clear about what they wish for and that they:
- form effective coalitions (such as the High Ambition Coalition in the climate change talks[25]);
- enable an interests-based negotiation;
- be clear as to their best alternatives to a negotiated agreement;
- identify win-win landing zones that add value for all the parties;
- are proficient in the technical substance;
- invest the required amount of political capital; and,
- facilitate the design of a negotiating process that is inclusive and transparent yet effective.[26]
This blog was written in December 2021.
Additional readings are listed on the Multilateral Matters portal.
This blog is written exclusively in the author’s personal capacity. Any views expressed are those of the author alone and do not necessarily represent the views of any organization or institution.
Endnotes
[1] In intellectual property, an example is the Washington Treaty on Intellectual Property in Respect of Integrated Circuits, which was adopted in 1989 but has never come into force.
[2] Haug, C. (2015). “What Is Consensus and How Is It Achieved in Meetings?: Four Types of Consensus Decision Making”, in J. Allen, N. Lehmann-Willenbrock, & S. Rogelberg (Eds.), The Cambridge Handbook of Meeting Science (Cambridge Handbooks in Psychology, pp. 556-584), Cambridge University Press, doi:10.1017/CBO9781107589735.024, p. 567.
[3] Urfalino, P., “The Rule of Non-Opposition: Opening Up Decision Making by Consensus”, Journal of Political Philosophy, 2014.
[4] Haug, C. (2015). “What Is Consensus and How Is It Achieved in Meetings?: Four Types of Consensus Decision Making”, in J. Allen, N. Lehmann-Willenbrock, & S. Rogelberg (Eds.), The Cambridge Handbook of Meeting Science (Cambridge Handbooks in Psychology, pp. 556-584), Cambridge University Press, doi:10.1017/CBO9781107589735.024, p. 567.
[5] Razetti, G., “Make Good Decisions Faster: Move from Consensus to Consent”, https://www.fearlessculture.design/blog-posts/make-good-decisions-faster-move-from-consensus-to-consent (accessed December 5, 2021)
[6] Urfalino, P., “The Rule of Non-Opposition: Opening Up Decision Making by Consensus”, Journal of Political Philosophy, 2014, p. 11
[7] Urfalino, P., “The Rule of Non-Opposition: Opening Up Decision Making by Consensus”, Journal of Political Philosophy, 2014, p. 11
[8] Urfalino, P., “The Rule of Non-Opposition: Opening Up Decision Making by Consensus”, Journal of Political Philosophy, 2014, p. 12
[9] Article IX, Agreement Establishing the World Trade Organization.
[10] Adlung, R. and Mamdouh, H., “Plurilateral Trade Agreements: An Escape Route for the WTO?”, WTO Working Paper ERSD, 2017 03, p. 8.
[11] Article IX, Agreement Establishing the World Trade Organization.
[12] Vogel, J., “The Problem with Consensus in the U.N. Framework Convention on Climate Change”, Philosophy and Political Quarterly, Vol 32, No. 2 (Winter 2014)
[13] Harvard University, “Managing Multiparty Negotiations”, 2019, page 10, https://www.pon.harvard.edu/free-reports/thank-you/?freemium_id=111757 (accessed December 5, 2021)
[14] Urfalino, P., “The Rule of Non-Opposition: Opening Up Decision Making by Consensus”, Journal of Political Philosophy, 2014, p. 17
[15] Urfalino, P., “The Rule of Non-Opposition: Opening Up Decision Making by Consensus”, Journal of Political Philosophy, 2014, p. 19
[16] Haug, C. (2015). “What Is Consensus and How Is It Achieved in Meetings?: Four Types of Consensus Decision Making”, in J. Allen, N. Lehmann-Willenbrock, & S. Rogelberg (Eds.), The Cambridge Handbook of Meeting Science (Cambridge Handbooks in Psychology, pp. 556-584), Cambridge University Press, doi:10.1017/CBO9781107589735.024, pp. 570-577.
[17] Moore, A. and O’Doherty K., “Deliberative Voting: Clarifying Consent in a Consensus Process”, Journal of Political Philosophy, Vol 22, no 3, 2014, pp. 302-319.
[18] Haug., C. (2015). “What Is Consensus and How Is It Achieved in Meetings?: Four Types of Consensus Decision Making”, in J. Allen, N. Lehmann-Willenbrock, & S. Rogelberg (Eds.), The Cambridge Handbook of Meeting Science (Cambridge Handbooks in Psychology, pp. 556-584), Cambridge University Press, doi:10.1017/CBO9781107589735.024, pp. 570-577.
[19] Vogel, J., “The Problem with Consensus in the U.N. Framework Convention on Climate Change”, Philosophy and Political Quarterly, Vol 32, No. 2 (Winter 2014), p. 17.
[20] Vogel, J., “The Problem with Consensus in the U.N. Framework Convention on Climate Change”, Philosophy and Political Quarterly, Vol 32, No. 2 (Winter 2014), p.18.
[21] Vogel, J., “The Problem with Consensus in the U.N. Framework Convention on Climate Change”, Philosophy and Political Quarterly, Vol 32, No. 2 (Winter 2014), p.15.
[22] Urfalino, P., “The Rule of Non-Opposition: Opening Up Decision Making by Consensus”, Journal of Political Philosophy, 2014, p. 13
[23] Harvard University, “Managing Multiparty Negotiations”, 2019, page 13, https://www.pon.harvard.edu/free-reports/thank-you/?freemium_id=111757 (accessed December 5, 2021).
[24] Urfalino, P., “The Rule of Non-Opposition: Opening Up Decision Making by Consensus”, Journal of Political Philosophy, 2014, p. 15
[25] https://www.highambitioncoalition.org/ (accessed December 8, 2021).
[26] See also Adlung, R. and Mamdouh, H., “Plurilateral Trade Agreements: An Escape Route for the WTO?”, WTO Working Paper ERSD, 2017 03, p. 23.