Consensus in the Draft Procedural Rules for the #Armstreaty

February 14 2012, 3:01 PM by Oistein Thorsen

Of critical importance at this week’s Fourth PrepCom for the U.N. Arms Trade Treaty is the use of consensus in the decision‑making process. The Provisional Rules of Procedure for the ATT propose that consensus is both the starting and ending point of the process to adopt an Arms Trade Treaty. The Rules envision that representatives will make “every effort” to make all substantive decisions by consensus. If consensus cannot be achieved, however, the Rules allow for a two-thirds majority vote, except where the final treaty text is concerned. The final treaty text is to be adopted by consensus, without a voting alternative.

 By ATT Legal

Some form of consensus decision‑making is at least considered if not employed in most multilateral treaties developed within the U.N. process. Consensus does not mean unanimity. Unanimity relates to the result of a vote indicating the affirmative vote of every representative. In contrast, the achievement of consensus does not include a vote of any kind. Consensus is often understood in the context of multilateral treaties as the absence of a stated objection. Rather, consensus is achieved unless a representative raises a formal objection.

In practice, use of the majority voting option is not automatic and is a last resort. It does not alleviate the burden on the Conference to take decisions on the basis of consensus. While procedural rules encourage delegates to make “every effort to reach agreement by consensus”, in the event consensus cannot be achieved, many treaties put all substantive decisions to a two‑thirds majority vote.

For example, the Draft Rules of Procedure of the Review Conference on the Non-Proliferation Treaty (2010) permitted a two-thirds vote on substantive matters if all efforts at consensus had failed, with no exclusions. The Rules of Procedure of the WHO Framework Convention on Tobacco Control (2005) provided that, if every effort to reach agreement by consensus failed, a three-fourths majority vote is permitted “as a last resort” on everything except financial matters. Similarly, the rules of the Convention against Transnational Organised Crime (2004) and the UN Convention on Corruption (2007) require the Conference to “make every effort” to achieve consensus but, if such efforts fail, it permits a two-thirds majority vote on anything other than budgetary matters. Rules of Procedure relating directly to the adoption of a treaty or convention also have permitted a two-thirds majority vote in the event that consensus cannot be reached.

The concern with the use of strict consensus decision-making without a voting option is that, while it encourages universal support, it can also serve to prevent progress in treaty negotiations. In the case of the ATT, the Provisional Rules of Procedure go further than other international conventions by requiring consensus, without the option of majority voting, for the adoption of the final text.

ATT Legal is a network of over 60 pro-bono lawyers providing legal support and analysis to States and NGOs on the Arms Trade Treaty process. Please contact the network via attlegalresponse[at]gmail[dot]com

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