Disarmament Insight


Sunday, 2 December 2012

The Elusive Consensus

There are good reasons for the inclusion of the consensus rule in the Conference of Disarmament’s Rules of Procedure.  These are discussed below.  But the consensus rule is being eroded tacitly or directly by those who are most keen to preserve it.

Something has to give.  Unless a more enlightened approach is taken to the use of consensus in the CD, the utility if not the integrity of that institution will be further debased. Recent decisions of the First Committee of the UN General Assembly in agreeing three initiatives for dealing with issues from the CD’s agenda in forums outside the Conference are no coincidence.

Sound advice on consensus was recently offered by the current President of the Conference. Introducing the CD’s annual report in the First Committee on 1 November 2012, Ambassador Hellmut Hoffman (Germany) reminded delegates that “consensus is not identical with unanimity”. He explained that consensus is the result of a “fair and honest effort” to arrive at an outcome which reflects a view “vastly prevailing” among member States and is one which those members whose interests are not fully met by it can nonetheless tolerate.  In other words, where voting is not an option, a decision is able to be taken without any member feeling obliged to voice a formal objection to it and thereby block it.

As the CD’s rules of procedure allow no other means of decision-making, there is an unwritten duty in situations where a member is isolated not to block consensus except in extremis.  The consensus rule does not confer an unfettered veto on each member.  Rather it protects a member from the imposition of an outcome by the “vastly prevailing” majority that would demonstrably jeopardise its supreme interests, i.e. its national security.

The prime purpose of the consensus rule in the CD is to assure members that decision-making on a multilateral negotiation of a treaty will not be dominated by the numerical superiority of any group of nations. The rule is also intended to facilitate the achievement of an agreement without the need for a vote and its “inevitable divisiveness”.

In addition, working by way of consensus can help facilitate the emergence of balanced texts that attract wider support, foster concerted uptake and implementation and prove to be longer lasting. The emergence of a dissatisfied minority, out-numbered under a voting procedure, is obviated.

In a body whose mandate is to negotiate matters affecting the security of all nations, those attributes of the rule surely amount to a sound basis for taking decisions only by consensus.  So, what is the problem?  The problem is that the impasse in the Conference does not reflect disagreement over anything as vital as the contents of a legally-binding treaty but simply over the basis on which treaty negotiations might be conducted.  There is no shortage of mandates that could ultimately lead to treaty negotiations – indeed there are four of them, but they have been unhelpfully fused together so that nothing constructive happens on any of them. For as long as agreement to a mandate on one core issue is held hostage to securing agreement to mandates on the other three core issues, the CD will remain rooted to the spot.

Boiled right down to just two central issues, some members who would like negotiations to begin on banning the production of fissile material for nuclear weapons aren’t yet prepared to concede that concrete efforts should also get underway on nuclear disarmament.  And vice-versa.  Perpetuation of the status quo serves no-one’s interests except those that, despite protestations to the contrary, wish to retain their nuclear arsenals or augment their stocks of fissile material.

But to return to the point.  The mere couching of mandates and prioritising of issues for the commencement of work in the CD can scarcely be characterized as constituting a threat to national security.  Therefore, “consensus” should be interpreted in its normal manner. That is, the decision should be taken by general agreement where no member believes that its security is so prejudiced by that decision as to impel it to voice its objection, thereby blocking it.

A member might object to a decision to adopt a draft treaty where it believed that the outcome, despite intensive negotiations in which it had participated, would prejudice its national security. A member might object to a decision to adopt a mandate which specifically precluded a particular outcome thereby demonstrably compromising that member's national security ab initio - an unlikely situation given the sensitivity traditionally shown by CD presidents in tabling only those mandates that have been the subject of exhaustive consultations. But a member would not normally object to a decision to adopt, for example, a document setting out the parameters and timetable for the CD's annual session even if that member’s preferred position was not fully met.

The regional groups of the CD, whose consultations are not covered by the consensus rule but have nonetheless fallen prey to it, might weigh the desirability of moving away from lowest common denominator outcomes and developing a habit of reaching more nuanced ones. For example, a group position that reflected a "vastly prevailing" viewpoint but that noted a different, minority approach albeit one that was not being insisted upon, or on which, perhaps in face-saving terms, instructions were being sought ... an outcome, in other words, that respected a minority position but that wasn't stalled by it.

In any event, as noted before in this column, indefinite blocking of decisions in the pre-negotiating stage of the CD’s work on a given topic serves only to reinforce doubts about the viability of the Conference.  There may not be a consensus that the CD’s days are numbered but the recent writings on the wall of the UN General Assembly are surely salutary nonetheless.

As Ray Acheson wrote in the final edition for 2012 of Reaching Critical Will’s excellent First Committee Monitor, “The important message coming from the majority of member states and civil society at this year’s First Committee is that a handful of countries must no longer be allowed to hold back the rest of the international community in tackling some of the most dramatic problems of our age.  Stalemates and watered-down outcomes must urgently be replaced by alternatives that can proudly be deemed “successful” for genuine human security and social and economic justice.  Governments and civil society alike should not settle for less.”

Posted by Tim Caughley, Resident Senior Fellow, UNIDIR, Geneva
Photographed is one of the Palais des Nations' beehives offered to the United Nations Office at Geneva by Switzerland on the occasion the 10th anniversary of Switzerland's membership of the UN.


butterzopf said...

This post on EJIL:Talk! by Dapo Akande on the meaning of “Consensus” in international decision making may be of interest to readers: http://www.ejiltalk.org/negotiations-on-arms-trade-treaty-fail-to-adopt-treaty-by-consensus-what-is-the-meaning-of-consensus-in-international-decision-making/