With the dust beginning to settle after the high drama of the negotiations of the Arms Trade Treaty, some reflections on the decision-making process are beginning to emerge. Here's another one ...
To recap, in 2009 the United Nations General Assembly agreed in A/RES/64/48 to convene a UN Conference to elaborate a treaty setting the “highest possible common international standards for the transfer of conventional arms”. The UNGA also agreed that the conference would proceed, on the basis of consensus, to “achieve a strong and robust treaty”.
In short, the goals were a strong, robust treaty containing standards that were the highest possible that could be achieved without any nation formally opposing the adoption of the final product of the Conference.
For the United States in particular the possibility of blocking the adoption of a treaty that did not meet its needs was a major factor behind the incorporation of the consensus rule. UN Conferences are masters of their own rules: the ATT Conference could equally have adopted the rules of the UNGA under which decisions on important questions are made by a two-thirds majority of member states present and voting.
In the event, consensus eluded the negotiators of the ATT. The culminating act of the Conference should have been the adoption of the draft Treaty but Iran, North Korea and Syria objected to the text. Those 3 countries did not just shrug their shoulders and resign themselves to the reality that almost 180 other countries were more or less satisfied with the draft. Nor did those 3 states decide simply to remain silent and content themselves with not signing, ratifying or acceding to the new treaty. They chose instead to rely on the consensus rule to formally voice their opposition, so blocking consensus and burying the product of the Conference.
Well, not quite. The draft survived intact. Sixty-four countries tabled it a few days later for decision in the UNGA where consensus, as noted earlier, is not required. It passed easily with 154 nations voting in favour including the US, but with the DPRK, Iran and Syria still against, and 23 abstaining.
Circumventing the consensus rule in this forum-shopping manner had its detractors amongst the naysayers and abstainers in the GA. But a prior question to ask is why the consensus rule was adopted by the Conference in the first place. The rationale for the consensus rule in treaty negotiations is ostensibly to prevent the national security interests of a minority being jeopardized by a large majority. Yet treaty obligations cannot be imposed on any state without that nation’s consent. Consent is not implied by the mere act of being part of a consensus. Consent must be expressed explicitly both through constitutional procedures as well as in the manner prescribed by the treaty (usually ratification or accession). These are national decisions entirely within each state’s control.
At the international level, consensus means that negotiators must strive at all times for the greatest meeting of minds possible. There is nothing wrong with aiming for general agreement. In the context of hundreds of thousands of deaths each year from armed violence, the objective of the ATT of producing “highest possible common international standards” patently requires it. To hold any real meaning, however, that same expression surely recognises that a lowest common denominator outcome must be avoided.
And this is where voting comes in to play. As we’ve noted before, the possibility of voting, however remote, concentrates the minds. In so doing, it improves the ultimate product by raising the level at which compromise is finally brokered. What if the ATT rules of procedure, in prescribing consensus, had also provided for voting by a very high majority but only after all feasible efforts to reach general agreement had been exhausted? Would the text have been stronger? Would the standards have been higher? Would consensus have been achieved? Would Iran, North Korea and Syria still have stood aside? Would the US even have participated in the Conference?
Difficult questions to answer. But let’s finish with perhaps a more fundamental question. Isn’t this a situation where the international community to its cost has overlooked the reality that the consensus rule can invest disproportionate power in the naysayers? Or has the UN General Assembly become the de facto voting mechanism of last resort, as in this case and that of the CTBT? Not a tidy way of proceeding, but arguably one that justifies the means - one that in effect “corrects” the misguided original adoption of the consensus rule by the GA in 2009. International comity, however, would be better served by a less haphazard way of developing treaty law, and especially by a more enlightened application of the consensus rule.
Tim Caughley, Resident Senior Fellow, UNIDIR
Tim Caughley, Resident Senior Fellow, UNIDIR