The current review cycle of the framework treaty known as the Conventional Weapons Convention (CCW) (a.k.a the Inhumane Weapons Convention) will culminate in the 4th Review Conference of the Convention in Geneva during the period of 14 to 25 November 2011. The most controversial item throughout this review cycle has been the need to build onto the CCW framework a supplementary treaty (or “Protocol”) dealing with cluster munitions. Many of the states party to the CCW have already chosen to be bound by (or have signed and are in the throes of joining) the Cluster Munitions Convention (CCM) that was adopted in 2008 in a process formally unconnected to the CCW.
Most of the signatory states and states party to the CCM are either opposed or indifferent to efforts in the CCW to develop a parallel instrument on cluster munitions, their assumption being that any such Protocol will fall short of the humanitarian standard set by the CCM. Indeed, one current draft Protocol, submitted by the chairperson of the CCW’s Group of Government Experts (CCW/GGE/2011-III/1), described here as the “GGE chair’s text”, would, if adopted in its present form, largely be confined to prohibiting cluster munitions “produced on or after 1 January 1980”, i.e., those that are already more than 30 years old and of questionable military value. For this group of states, a “draft Alternative Protocol” (CCW/GGE/2011-III/WP.1) tabled by Austria, Mexico and Norway has the advantage of being complementary to and compatible with the Cluster Munitions Convention.
For other CCW members, the GGE chair’s text is broadly acceptable and is seen by many as having the virtue of drawing in key producers and users of cluster munitions for whom the CCM is a step too far. With competing drafts on the table, the upcoming Review Conference promises to be lively, and bets are on as to whether CCW states parties will be able to agree on a cluster munitions Protocol (in some shape or form), or fall back on carrying over negotiations into 2012, or shelving the topic altogether as occurred in 2007 with Mines Other Than Anti-personnel Mines (MOTAPM).
Either way, a decision will have to be made, and such decisions – CCW delegates do not tire to point out – are to be taken by “consensus”. But to what extent is “consensus” a formal requirement in the framework of the CCW? And what does “consensus” actually mean in practice? Would all decisions be required to be taken by consensus of just the adoption of a Protocol?
The CCW, which itself was adopted by consensus, provides in effect that consensus is required for the adoption of any new Protocol. That much is clear, although the relevant provision, as we shall see, curiously avoids the word “consensus”, stipulating instead that Protocols shall be adopted “in the same manner as this Convention”, i.e., by consensus! Strangely enough, nor do the rules of procedure actually use the term “consensus”. Nonetheless, it is safe to say that at the point at which any new Protocol is presented to the Review Conference for adoption the President of the Conference will establish that consensus exists, that is, that there is no state party that objects to the adoption of that instrument.
But, before the Review Conference will decide that issue, the question arises whether lesser decisions also need to be taken by consensus. How will the Conference determine which of the two competing texts should be the focus of its work? Or will it proceed to negotiate on both of them simultaneously? In the face of deadlock, what guidance can be obtained from the CCW, the rules of procedure and the past practice of the parties?
As already noted, the relevant provision of the CCW - Article 8, does not contain the term “consensus”. This article as a whole contemplates more than one way to bring about an outcome. For instance, Article 8. 1 (a) and (b) refer to the majority required for convening a conference of states parties in certain circumstances. Article 8.2(b), instead of explicitly using the word “consensus”, elliptically stipulates that Protocols shall be adopted “in the same manner as this Convention”.
The Rules of Procedure for the November Conference have already been agreed (CCW/CONF.IV/2; see paragraph 19 of CCW/MSP/2010/5) and are the same as those used at the third Review Conference held in 2006. The Rules envisage a number of situations in which a vote would be required. These include rules 19 - 21, 25 – 27, 30 and 32 - 34. Rule 20, for instance, requires that a President’s “ruling shall stand unless overruled by the Conference”, Rule 25 requires that certain motions “ shall be put to the Conference for decision immediately”, and in accordance with Rule 33, a proposal may not be reconsidered unless the Conference “takes a decision to that effect.”
And what do the Rules of Procedure say about such “decision making”? In a somewhat circular fashion, Rule 34 requires the Review Conference to “take decisions in accordance with Article 8 of the Convention”. Rule 30 provides that as a general rule, no proposal shall be discussed or put to a decision unless copies of it have been circulated to all delegations in their respective working languages not later than the day preceding the meeting. The President of the Conference may, however, permit the discussion and consideration of amendments, or motions as to procedure, even though these amendments and motions have not been circulated or have only been circulated the same day. No mention is made, however, as to whether a decision requires consensus or a simple or qualified majority.
What light can the past shed on these questions? Unfortunately, uncertainties about decision-taking in the CCW remain as alive today as they were at the Convention’s adoption in 1980 when those opposing the incorporation of a strict consensus rule apparently went along with adoption of the CCW by consensus only because differences over the terms of the Convention itself - as opposed to the principle of decision-making in general - were negligible. But in doing so they did not regard that instance as settling the matter for all time. In effect, they reserved their position. This background explains the constructive ambiguity inherent in Article 8 that, over the years, has been interpreted mistakenly as mandating a single decision-taking approach, one of consensus. Conversely, it should encourage more tolerance for those who refute the notion that the CCW must take decisions only by consensus.
In any event, consensus should not be required for accepting or rejecting an amendment proposed to the GGE chair’s text. This would be unworkable if not unfair. The draft has no status other than as a working paper submitted by the chairperson of a Group of Government Experts as a personal reflection of the Group’s debate on the issues over which he had presided. The same goes, of course, for the draft proposed by Austria, Mexico and Norway. Short of agreeing to revisit and amend the Rules of Procedure, the only real option that would seem open to the states party to the CCW is to heed Rule 32 which creates the possibility for the tabling of a motion calling for a decision on the competence of the Conference to adopt a proposal submitted to it – in this case, settling the issue of priority to be accorded to competing texts - before the matter is discussed or a decision is taken on it. The Rules of Procedure would thus be applied for a constructive purpose, unlike the situation in the Conference on Disarmament (CD) where the rules of that body tend to be invoked to obstruct rather than facilitate its work.
Whether or not recourse is had to voting, forging consensus is and must remain a central ingredient of multilateral diplomacy. Properly applied, the consensus rule – the reaching of a commonly-accepted position to which no party feels obliged to object - should encourage compromise, leading to an outcome that attracts the widest possible “buy-in” of the international community. The option to vote, however, concentrates the minds of negotiators and improves the ultimate product by raising the level at which compromise is finally brokered. November’s CCW Review Conference may be poised to challenge the grip of the consensus rule, but can the meeting take it in its stride in the time available? We will see.
This is a guest blog by Tim Caughley. Tim is a Resident Senior Fellow at UNIDIR.
(The symbol is drawn from Google Images – diamonds being the symbol for decisions)