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
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
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.