Bad Boy Scout: The Importance of Process and Good-Faith Negotiations

by Anjali Appadurai

Sometimes I get frustrated with all the "procedural crap" that seems to govern any group process. [Earth] has found it onerous to sit in YOUNGO meetings where process seems to be treated not as a means to an end, but rather as the end itself. Endless hand signals, protocols, rules, processes, tokenization of cultural and gender representation, and over-sensitivity can seriously undermine the creativity and cohesiveness of a group.

There comes a moment, however, when we have to realize the importance of process to the outcome of the multilateral process. When convening hundreds of negotiators representing almost 200 countries with differing interests, process becomes the vehicle of progress. Process is the rules of the game: it's only fun if no one cheats. To this end, participating positively in the agreed-upon process is of utmost importance, and the failure to do so is considered "bad faith negotiations". Bad faith negotiating tactics are akin to bad form in sports or cheating on a test — they benefit only one party while undermining the entire game.

So it's especially infuriating when at this conference as we fight endlessly for climate justice, we see violations of the process and bad faith negotiating that take our fight several steps backwards. It can be noted that almost every notable instance of bad-faith negotiations at this COP was on the part of some developed country. Here I will outline three such incidences, all of which took place in just the last three days:

Bad Boy Scout

There was a grim fight happening in the meetings of the Ad-Hoc Working Group on Long-term Cooperative Action (LCA). Parties had inevitably split themselves along the lines of "developed" vs. "developing" and these two sides were locked in combat over the issue of intellectual property rights and technology transfer (for context on this issue, see this summary). The fight, in a nutshell: in order for developing countries to mitigate their emissions, they need a flow of clean technology systems from developed countries, where 90% of these technologies are created. Intellectual property rights (IPRs) — usually in the form of patents — act as a barrier to technology transfer. IPRs are addressed in decisions 4/CP.17 and 3/CP.13 of the Cancun Agreements of 2010. Doha, developing countries wanted IPRs to be addressed in any decision coming out of Doha. Developed countries (namely the US and Japan) explicitly wanted no mention of IPRs anywhere in the UNFCCC. They said that the issue belonged "elsewhere" (elsewhere meaning the WTO, where harmful agreements like TRIPS are being imposed on developing countries). The issue is of critical importance to the future of the Convention, but seeing as the fight was going nowhere, the Chair of the meeting ordered breakout groups to negotiate in private and come back later in the day. This is a standard process to make negotiations move forward. The first bad-faith negotiating tactic came from the US, who said outright, "the US will not engage in any meeting about this issue, whether you call it a breakout group or an informal meeting, if it has a facilitator we will block it." Essentially setting a precedent that if a country doesn't like an issue, it can block any discussion on said issue without even going into negotiations. The Chair had no choice but to come up with a new idea: "voluntary breakout groups," he called them. He assigned a facilitator and a room, and told Parties that whoever wanted to engage could do so (with an expectation that all Parties except the US would do so). In this way discussions could have moved forward. Kuni Shimada, Japanese head negotiator, was assigned as the facilitator for the session. This is where more shady tactics came into play. Kuni went to the assigned room and loudly proclaimed that he had had "no clear instruction" from the Chair on how to proceed with the breakout group, and therefore could not run the meeting. The meeting dithered on in this fashion, and eventually went nowhere. Upon reconvening, the Chair attempted to chastise Kuni, who was immediately backed up by the US, who in turn reiterated their strong feelings about avoiding any discussion on the IPR issue. Similar breakout groups were mandated once again. Precious time had been wasted; time was running out. A decision had to be made before the end of COP. In this second round of breakout groups, Kuni was given a second chance to be facilitator. This time, he proclaimed loudly that he was "not here as facilitator," griping about the process that had been mandated by the chair. During the meeting, he maintained his position alongside the other developed countries, echoing whatever the US said instead of facilitating the meeting in a neutral fashion. To top it all off, he declared the problem unsolvable in the meeting room and suggested that all negotiators "discuss over a campfire" if they wanted to talk further. Delegates, disgusted by this waste of time, began leaving the room. The Indian head negotiator said later to the Chair, "this is the first time in our experience that a direct mandate from the Chair was overruled." This bad boy scout, with his refusal to participate in good faith and his disrespectful suggestion of a "campfire discussion," wasted the potential of those couple of days to move forward on the IPR issue. Because of this flattening of the process, developed countries had the time crunch and resulting secrecy on their side in the final throes of the COP, and of course — got their way in the end.

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Taking the Process Hostage

After being postponed multiple times over the course of the last two days, the final plenary of the COP was about to convene. But as soon as the Chair opened the meeting he declared it unable to proceed because there were key documents missing that were meant to have been submitted by Parties. As he read out the names of Parties who had failed to turn in the simple document, it was clear that most of the EU countries were to blame. The document was simply a token letter of consent providing the final piece of paperwork for Kyoto Protocol Parties to continue with the second-commitment period. There was a scuffle up front as Connie Hedegaard, EU special climate convoy, rushed to the front of the room and called for an EU huddle in the next room. As EU delegates left the room, leaving everyone else waiting for yet another hour, developing country delegates were angry. The EU "accidental" omission of these documents was nothing more than a symbolic hostage-taking of the process, sending a signal that they were the lifeline keeping the Protocol alive, and could withdraw this lifeline as they wished. At this final plenary, there were several developing countries with mandates from their capitals to block the passing of the final text — empty, weak and harmful as it was. The theatrical stunt by the EU in the beginning of the meeting sent a clear message that the Kyoto Protocol was the EU's bargaining chip, and would be lost if developing countries blocked the text.  In the language of diplomats, this was clear to all Parties, and no one ended up blocking the final outcome, though Parties expressed a clear desire to throughout the last week of the COP. As the EU Parties gathered outside, Yeb Sano, head negotiator for the Philippines, tweeted first  "Bad faith on the part of Annex B parties. Where are your written consents?" then "all the while we were negotiating KP, they planned to hostage the process."

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Cunning Consensus

After order was restored, the plenary began once more. This time, no one was prepared for what followed. In two minutes flat, the Chair had gaveled through the final Doha decision, without so much as pausing to hear objections! It was so swift, so chillingly smooth, even those in the room had no idea what had happened. When the dust settled and the smattering of applause from EU-lovers in the room had died down, we were made aware of a sharp rapping on one of the tables in the front. Russia was finally given permission to speak, and when he did, it was scathing. He was absolutely incensed by what he called a total breach of the process. He had planned to object to the text, and had had input to the outcome, but the Chair had bulldozed through the gaveling of the decision without taking input from Parties. He was sure the Chair had seen him, but had simply ignored his insistent rapping. He pointed out that it was not just him, but two other countries who had requested the floor as soon as they saw that the Chair was about to adopt the Doha decisions. In an RTCC article later, the same negotiator spoke of the "legal nihilism" that seems to be taking over the UNFCCC process.

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So process is not just the framework through which the real substance of the talks is facilitated. It seems to also be a clever tool used to influence the substance coming out of the talks. As [Earth] and other observers fight for some values to be instilled into the political process, we are forced to remember that one of these basic values — that of negotiating in good faith — is missing. Its absence leaves a black hole into which real political progress falls into and is never seen again. Never mind the millions of dollars, scores of trees and days of time wasted at these annual conferences — breaches of process and bad faith negotiating are the greatest, most tragic waste of all.

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