Day 2: Lowest common denominator or highest possible standards?

February 15 2012, 1:38 PM  by Ray Acheson

The second day of the preparatory committee continued to focus on the provisional rules of procedure for the July arms trade treaty (ATT)negotiating conference. Consensus and NGO participation were once again highlighted, though other elements raised included the Chair’s text and other background documentation and the possibility of simultaneous meetings during the negotiations. The underlying question of the day was whether or not the procedural rules would enable the ATT process to achieve the highest possible standards, as set out as the objective ofUN General Assembly resolution 64/48 (2009) that established this process, or merely the lowest common denominator.

by Ray Acheson, Reaching Critical Will of the Women’s International League for Peace and Freedom

A number of delegations have over the past two days argued that operational paragraph 5 (OP5) of resolution 64/48, which says that the negotiating conference shall undertake its work “on the basis of consensus,” means that all decisions must be taken by consensus. States espousing this view during the second day of deliberations included Algeria, Cuba, Indonesia, Iran, and Venezuela. Though it supported OP5, Viet Nam argued that consensus does not mean unanimity, but rather, no formal objections and no voting. Turkey’s delegation indicated support for OP5 of resolution 64/48 but also stated that it would be flexible on the issue.

The Arab Group, Algeria, and Iran called for the amendment or deletion of all of the draft rules indicating the possibility of voting.

The Algerian and Egyptian delegations expressed surprise that the issue of consensus is even being discussed—for them, the issue was settled with the adoption of resolution 64/48. Algeria’s delegation argued that all proposals in favour of including voting in the rules of procedure are “in flagrant contradiction” of OP5—“they are interpretations which verge on fantasy”. It complained that some states are trying to “impose the law of the majority,” which it considers to be “an empty step” that diverts from the objective of universality. “It is surprising to hear several delegations so zealously defend the unrestricted use of majority vote at this stage,” said the Algerian delegation.

However, as Trinidad and Tobago pointed out, consensus would not inevitably lead to universality. Furthermore, many delegations argued that “on the basis of consensus,” as stipulated in OP5, does not indicate a) what consensus means; or b) upon which decisions it must be applied. Several delegations, such as Belize, Chile, Costa Rica, Germany, Jamaica, Kenya, Malaysia, and Sweden argued that OP5 was intended to convey the general spirit of trying to reach consensus agreement but that it does mean absolute unanimity and/or that consensus has to be applied to every decision. Many of these states echoed the “golden rule” that “nothing is agreed until everything is agreed”.

New Zealand’s delegation agreed with the European Union that UN practice should guide the conference on what consensus means. “While consensus has no formal status in the UN General Assembly’s own rules of procedure, UN practice tells us that consensus is a process for decision-making which avoids formal objections and voting,” said Ambassador Dell Higgie.

On the other hand, China’s delegation argued that consensus is the usual practice in the UN on disarmament, arms control, and security issues. However, China also argued that this does not mean any country can block progress “without reason”. France’s delegation specified that consensus should not “open the door to a veto at each and every stage of negotiations,” nor lead to anyone blocking the conduct of the conference. It also, however, argued that each part of the text must be adopted stage by stage.

Germany’s delegation argued that states that advocate consensus on all decisions and on single paragraphs must be aware that all progress in July would be put at risk. It cautioned that it would make little sense to sign a treaty which has been negotiated down to “meaningless substance”. Sweden’s delegation argued that if the conference tries to negotiate this treaty on the basis on requiring separate consensus on every element, “we will end up with nothing because whatever we come up with will be less than perfect for someone.” Sweden called for all states to exercise good faith and noted that rules of procedure are insurance policy, a fall-back for guidance if the conference reaches an impasse. Costa Rica’s delegation argued that consensus is a path, not an end in itself; that it is a basis, not a normative structure.

Some states indicated concern with the rules as written. Liechtenstein’s delegation expressed reservations with rule 33.3—that the conference “shall adopt the final text of the treaty instrument by consensus,” cautioning that this “may set us up for failure”. However, a few delegations argued that consensus should apply to the adoption of the final text, including Finland, France, Netherlands, and the United States. Kenya said the conference should “strive for” consensus on the final document.

On day one of the PrepCom, the Mexican delegation suggested that paragraph 1 of rule 33, which indicates that the conference “shall make every effort to ensure that all its substantive

decisions are taken by consensus,” should be retained while the rest of rule 33 should be deleted and rule 35 amended accordingly. On day two, the delegation of Grenada, Guatemala, Jamaica, and Trinidad and Tobago indicated support for this proposal.

On the other hand, the delegations of Belgium, BelizeJapan, Netherlands, Switzerland, the United Kingdom, and the United States indicated they support provisional rule 33, which they see as being consistent with resolution 64/48 and UN rules. Italy also indicated its support but suggested more clarification might be necessary to avoid misinterpretation later on. Germany’s delegation said the rules as written are a good basis for further deliberation but that flexibility is needed for moving forward. Some delegations, such as France and the Republic of Koreaargued that consensus should not extend to procedural decisions.

Peru’s delegation argued that the wording in the rules of procedure should be as close as possible as what is mentioned in resolution 64/48. However, it also clearly described the nature of consensus as used within the Non-Aligned Movement, emphasizing that consensus does not demand unanimity. According to Peru, NAM rules stipulate that:

All decisions are adopted by consensus, a mechanism designed to widen solidarity and unity in the Movement. Consensus in the Movement of Non-Aligned Countries presupposes respect for diverging viewpoints and, even though it means an agreement by a considerable majority of its members, it does not demand nor does it imply unanimity. If a country does not agree it may record its reservations. For all practical purposes, consensus in the Movement of Non-Aligned Countries can be read as the existence of an “overwhelming majority” in favor of a given proposal.

Peru argued that any democratic process implies a respect for differences and that no state has the prerogative of imposing their views on others. Furthermore, since Peru has consistently called for the abolishment of the veto within the UN Security Council, it cannot therefore support a disguised veto in this process.

NGO access and participation
A great number of delegations recognized the important contributions of civil society to the ATT process, including Chile, Costa Rica, Côte d’Ivoire, Finland, FranceGermany, Jamaica, Japan, Netherlands, New Zealand, Nigeria, Republic of Korea, Sierra Leone, SpainSweden,Tanzania, and Turkey.

Chile and the Republic of Korea said non-government organizations should be allowed wider participation in the negotiating conference; Côte d’Ivoire called for “intensified” participation. Turkey’s delegation said NGOs should be given a “meaningful role” while the Democratic Republic of the Congo issued support for the “unrestricted” participation of civil society. Finland’s delegation called for civil society to be allowed to actively participate in the conference. Fiji welcomed the “continued engagement” of civil society “in transparent consultations that would lead to an holistic ATT,” while Jamaica said that civil society should have greater participation than that envisioned in the draft rules.

Several states, including Belgium, Germany, Italy, Liechtenstein, Netherlands, New Zealand, and Sweden, emphasized that civil society should be able to address the meeting on more than one occasion during the negotiations.

On day one, the Norwegian delegation suggested that rule 57.2 be reversed to ensure that meetings are open unless decided otherwise, rather than assuming they are closed until decided otherwise. On day two, Costa Rica and New Zealand agreed with this suggestion. Ambassador Dell Higgie of New Zealand argued, “The results of our work—the Arms Trade Treaty—will be entirely public. Why should the process leading to its adoption not also be public?”

The UK delegation suggested an amendment to rule 57, designating “main committees” as public meetings.

France’s delegation issued support for the EU position on NGO participation, in which it supports “the active participation of NGO’s representatives in the Conference, while maintaining the possibility of having closed sessions when appropriate.” Algeria, Iran, and the United States indicated that they are comfortable with the provisions for civil society as they stand now. The United States argued that the proposed rules “achieve the right balance”.

Chair’s text
Most delegations are supportive of the Chair’s draft paper, issued at the third PrepCom on 14 July 2011. This paper attempts to indicate the majority view on all of the potential treaty’s provisions, from scope and criteria to implementation. Delegations including Belgium, Belize, Chile,FijiNew Zealand, Nigeria, United Kingdom, and Viet Nam want the text to be included among the background documentation for the conference and/or used as the foundation for negotiations in July. Several argued that discarding this draft would mean starting at square one.Ambassador Dell Higgie of New Zealand questioned whether any delegation suggesting that the Chair’s text is unnecessary for negotiations “was committed to securing a satisfactory outcome for the ATT process.”

Some states, however, want a compilation of state’s views, rather than the “summary”-type text produced by the Chair last year. Algeria,Indonesia, and Malaysia indicated they think this would be helpful in moving forward. The UK delegation, however, pointed out on day one that all states have had the opportunity to submit their views to the ATT process and that over one hundred delegations did that in the UN Secretary-General’s report in 2007.

Parallel meetings
The question of simultaneous meetings during negotiations has given many small delegations pause. Due to capacity issues, it could be difficult for small delegations to participate in several meetings at once. On day one, CARICOM suggested that “where simultaneous meetings of the conference subsidiary bodies cannot be avoided, a mechanism be established that would facilitate such bodies reporting back to the plenary at the end of each day.” On day two, the delegations of Grenada, Jamaica, LiechtensteinNew Zealand, and Trinidad and Tobago issued support for this suggestion.