Consensus in the CD and multilateralism

Despite the committed efforts of its six chairs, the 2012 session of the Conference on Disarmament had few highlights.  The closest it came was the readiness of all but one Member State not to oppose the Egyptian president’s recipe – the mandates for work set out in CD/1933/Rev.1 - for reviving the CD’s negotiating mode after a 16-year hiatus. The Conference’s annual report to the UN General Assembly will thus be bereft of good news.  It may even be bereft of any real news.

Earlier this year when the president (Ambassador Badr, Egypt) tabled his carefully nuanced proposal for decision, Pakistan was unable to join the consensus, and the measure thereby failed.  The Pakistani Ambassador (Zamir Akram) explained on 15 March that the (deliberate) ambiguity over the inclusion of existing fissile material in the scope of the proposed negotiation of a fissile material production ban would compromise that nation’s security – the stakes were described as being of an “existential” nature for Pakistan.  Italy’s rejoinder, that conceivably only the outcome of such negotiations, rather than the negotiations themselves, could compromise a state’s security, cut no ice.

The point at issue here is whether the CD’s sole manner of decision-taking should be used somewhat more sparingly, say, at an advanced stage of the negotiations and certainly when a fully-fledged treaty text is tabled for adoption.  Pakistan’s diplomats are widely admired as skilful negotiators and are highly adept at multilateral negotiations, but even if their nation failed to secure an outcome that met its needs it could block consensus at the point of adoption of the resulting treaty. 

And, of course, no state can be bound by treaty obligations unless it has ratified or otherwise formally signified its acceptance of them.  Pakistan’s stance in the Conference is therefore a puzzling one, the more so because of its strong attachment to multilateralism. During the recent Arms Trade Treaty Conference in New York, Pakistan’s delegate Ambassador Raza Bashir Tarar said this:

“We hope all of us can marshal the true spirit of multilateralism which necessitates flexibility, compromise, consensus and a balance of interests of all States. Such a spirit is not without precedent within the UN context.” The Ambassador went on to give some examples drawn from the disarmament arena, such as the “unanimous adoption of UNDC guidelines on international arms transfers, the successful conclusion of UN Programme of Action on Small Arms and the UN Fire Arms Protocol, along with voluntary transparency mechanisms of [the] UN Arms Register and the UN Report on military expenditures, [which] together represent a firm foundation for the structure of an Arms Trade Treaty”.

Fast-forward to the final presidency of this year, that of Germany. Ambassador Hellmut Hoffman’s main task in the chair is to secure agreement to the CD’s annual report to the UN General Assembly. Again, such agreement must be by consensus, that is, the absence of any formal objection by a Member State.  What Ambassador Hoffman said about multilateralism and consensus warrants repeating here:

“Since the question of the rule of consensus continues to be a matter of much debate in this Chamber - which is not surprising given the role it has played in making things possible or not possible in our work in the last decade or so - let me quite emphatically say at this point that in my book of multilateralism working towards consensus is a goal of great importance.  At the same time it has to be said as well that for multilateralism to be effective, achieving consensus must not be misunderstood as a licence to force vast majorities to settle for outcomes at the very lowest common and at times banal denominator”. Somewhat more pointedly, the chair continued: “If achieving consensus is misunderstood as a free ticket to veto whatever one does not like, even if entirely isolated on an issue which is not involving one's fundamental interests, multilateralism cannot achieve any substantive results at all. If and when this happens multilateralism starts to exist for its own sake as a more or less empty process. The CD represents a good example of this danger”.

What is inherent in the president’s words is that the exercise of the right to withhold consensus carries with it certain responsibilities.  As the CD’s rules of procedure allow no other means of decision-making, there is an unwritten duty in situations where a Member State is isolated to withhold consensus only in extremis.  This is why Ambassador Akram described the situation confronting Pakistan as “existential”, albeit in relation to the adoption of negotiating mandates rather than a painstakingly negotiated treaty.  Curiously, however, Pakistan’s deputy representative took the floor immediately after the chair had made the remarks just quoted to voice what seemed like - but may not have intended to be - a less nuanced approach. Expressing the need to make his views clear “on the record” of the CD, Pakistan’s delegate described the president’s interpretation of the rule of consensus as “rather innovative”.

Whatever was the intention of Pakistan’s recent remarks, it would be unfortunate if they were construed as taking issue with Ambassador Hoffman’s central point that multilateralism will not be well served by treating the consensus rule as a right to “veto” in every instance.  In prescribing the “requirement for a single multilateral disarmament negotiating forum … taking decisions on the basis of consensus”, the UN General Assembly’s first special session on disarmament was very conscious of the security considerations that might influence a State’s position.  UNSSOD-1 specifically recognized that the “adoption of disarmament measures should take place in such an equitable and balanced manner as to ensure the right of each State to security and to ensure that no individual State or group of States may obtain advantages over others at any stage”. In the context of the broader objectives of operating at the multilateral level, it cannot be supposed, however, that the General Assembly would have regarded “measures” (e.g., treaties) as encompassing mere working mandates such as those in CD/1933/Rev.1.

Where are these comments leading?  The exchange between the president and Pakistan was in the context of agreeing the CD’s annual report to the UN General Assembly.  Traditionally this involves a rather animated but hollow exercise in which a small minority prevents the Conference from including anything in the report that would, for example, inform the UNGA of the divergence of views in the CD on the nature and causes of its longstanding deadlock. Logic dictates that with the future of this forum under such a dark cloud, the patience of the General Assembly would be tested less, if not improved, if the consensus rule were used more sparingly and the Conference could thus volunteer a formal insight into the current state of affairs. In these worrying times for multilateralism, not to mention the viability of the CD, let’s hope that common sense prevails on this occasion.
This is a guest post by Tim Caughley, Resident Senior Fellow at UNIDIR. See also earlier comments on the CD.