Day 5 of the Fourth PrepCom

(c) Jesper Waldersten

So we have the rules of procedure for the Diplomatic Conference in July. After most of the final day was spent with key delegations in a huddle in the UN café, an agreement was finally reached late in the day. The Chair had sought to ratchet up the pressure by having the UN Secretariat test the electronic voting not once but twice in the morning. The Chair had alluded to the difficulties in reaching an agreement when he opened the morning session, referring to the informal consultations on the evening of Day Four as "sometimes like a psychotherapy session".

The Rules of Procedure do not allow for voting on any matters of substance, which may be the first time a UN diplomatic conference convened to negotiate a specific treaty has precluded this possibility. Even the negotiation of the Rome Statute of an International Criminal Court, which has potential consequences for States not party, allowed for voting. Rule 33 of the Rules of Procedure for the United Nations Conference on the Arms Trade Treaty states that:

"The Conference shall take its decisions, and consider the text of the Treaty, by consensus, in accordance with General Assembly Resolution 64/48."

That does not leave a lot of wiggle room if a small number of delegations decide to act as spoilers--sadly a possible scenario in July. At least the negotiations should be able to focus on the substance rather than be mired in procedural disputes. For any procedural decisions, a two-thirds majority can carrry the day, once the Conference has made every effort to ensure that those decisions are taken by consensus. The President of the Conference has the authority to determine whether an issue is substance or procedure, although his or her decision can be overturned by a simple majority of states present and voting.

The Diplomatic Conference will open in New York on 2 July 2012 and run for four weeks. Given the rules of procedure, agreement will be exceptionally hard to achieve, especially for states that wish to see a "strong and robust treaty" consonant with General Assembly Resolution 64/48. Let us hope that the process, and the result, will truly be, in the rather mangled cliché of one leading diplomat, "Bottom-up, not up-bottom."

Day 4 of the Fourth PrepCom



(c) Jesper Waldersten

Indications were given in the plenary that a certain narrowing of positions on the rules of procedure has been occurring in informal consultations held by the Chair, but it is not clear whether it will be sufficient to avoid the need to have recourse to a vote on the rules on the final day. Brazil warned against voting, stating that it would be "painful" and "disruptive".

The Chair went through his revised draft report on the preparatory committee process, which seemed to attract general support, with the caveat that there was no agreement on whether to include a request to the Secretariat to compile a thematic paper of Member States' views. This paper appears to be seen as a counterbalance by the sceptics to the Chair's draft paper, and was opposed by the European Union, Belize, and Switzerland, among others. Algeria, which wanted an "operational document", said the report of the prepcoms must be adopted by consensus.

Several delegations reiterated their general positions on scope and criteria to include in the future treaty. Vietnam supported the inclusion of small arms and light weapons, which seems to be a shift on their part, although they cautioned about states being too ambitious. Norway stated that the Chair's paper should be the starting point for the negotiations in July.

Day 3 of the Fourth PrepCom



(c) Jesper Waldersten

More of the same on Day Three, with little evidence so far of a breakthrough on the draft Rules of Procedure. The Preparatory Committee meeting was presented with a draft report on its work by the Chair. Largely factual in nature--essentially saying "we came, we met, we discussed"--the report does, though, propose to annex the Chair's paper as a background paper for the forthcoming Diplomatic Conference, which means it will be translated into all five other UN languages.

But what role the paper will play in the Diplomatic Conference remains unclear. Sweden, for example, stated that the paper was not written in legal language, suggesting its utility could be somewhat limited.

A sticking point on the draft report is the request by some of the sceptics to request the UN Secretariat to prepare a compilation of Member States views on the treaty. It's hard to see how the UN could do justice to everyone's statements without asking each state to submit a summary of their views, which could make it a very long document. Indeed, ODA delivered a short statement to the Committee noting that it takes its impartiality "very seriously". This did not, however, satisfy Algeria, Egypt, and India. The Chair will conduct informal consultations with delegations on the issue on Thursday (Day Four).

Further informal consultations with delegations on the draft Rules of Procedure were conducted on the evening of Day Three. It remains to be seen whether agreement can be secured by Friday, or whether the issue will be kicked down the line to the Diplomatic Conference itself.

Day 2 of the Fourth PrepCom

(c) Jesper Waldersten

Day Two of the Fourth Prepcom continued the discussions held on the first day with respect to the draft Rules of Procedure for the July Diplomatic Conference. There was general agreement (but not quite unanimity) that NGOs should be allowed to address the Conference more than just once. It is not known if the inconsistency in the draft Rules of Procedure was entirely accidental when the text of Rule 63(d) stated that:

"Representatives of accredited non-governmental organizations will be allowed to address the Conference during one meeting specifically allocated for this purpose. These meetings will not coincide with other meetings of the Conference;"

The first sentence says meeting (singular), whereas the second sentence says meetings (plural).

The main focus of discussion during Day Two, however, was the rules governing decision-making for the negotiation and adoption of the treaty in July. There was little narrowing of positions, but some interesting statements by a number of states that favour consensus whereby consensus does not mean "unanimity" (e.g. Vietnam) and that consensus should not allow a state to veto the treaty without any reason (e.g. China). The US, which insisted on the word "consensus" being included in the text of General Assembly resolution 64/48, accepts the wording of the draft Rules of Procedure, which includes provision for possible voting during the Diplomatic Conference other than on the adoption of the final treaty.

An interesting intervention by Peru set out the Non-Aligned Movement's definition of consensus, which does not mean only unanimity, but can encompass an "overwhelming majority", thereby preventing a single state or a very small number effectively wielding a veto. Peru stated that the conference could not "allow a minority to ruin the negotiations."

Switzerland, Trinidad and Tobago, and Jamaica stated that Rule 33(1)--whereby "The Conference shall make every effort to ensure that all its substantive decisions are taken by consensus."--reflected their understanding of the meaning "on the basis of consensus" in General Assembly resolution 64/48.

The Chair again convened informal consultations among delegations in the last 90 minutes of the day to see if progress could be made towards an agreement on the issue of decision-making.

Day 1 of the Fourth PrepCom

(c) Jesper Waldersten

The fourth Prepcom was supposed to be purely procedural, but that's hardly what happened on the first day. Several delegations made very long statements that were largely devoted to setting out their--or their regional group's--views of what an ATT should look like. In any event, the procedure will have a significant bearing on the substance through issues such as the extent of the need for consensus during the Diplomatic Conference, access to the diplomatic conference to NGOs, and the status--or non-status--of the Chair's paper.

Agreement was achieved--but not without quite prolonged discussion--on the agenda for the Prepcom as well as for the Diplomatic Conference, the core background documentation for the Conference, and the general composition of the Bureau at the Conference (three representatives from each of the five regional groupings). Still to be agreed are the rules of procedure governing decision-making and access to NGOs. Ambassador Moritan convened delegations to discuss these issues at the end of the day, but the results have not yet been made public.

The major sticking points are the elements of the draft Rules of Procedure that require either consensus or voting. The key elements of the draft Rules are reproduced below.

VII. Decision-making
Rule 33
1. The Conference shall make every effort to ensure that all its substantive decisions are taken by consensus.

2. Notwithstanding any measures that may be taken in compliance with paragraph 1, a proposal or motion before the Conference shall be voted on if a representative so requests.
3. Notwithstanding the procedures set out in paragraphs 1 and 2 above, the Conference shall adopt the final text of the treaty instrument by consensus.

Majority required
Rule 35
1. Unless the Conference decides otherwise, and subject to paragraph 1 of rule 33, decisions on all matters of substance other than adoption of the final text of the treaty instrument shall be taken by a two-thirds majority of the representatives present and voting.

2. Except as otherwise provided in these rules, decisions of the Conference on all matters of procedure shall be taken by a majority of the representatives present and voting.

3. If the question arises as to whether a matter is one of procedure or of substance, the President of the Conference shall rule on the question. An appeal against this ruling shall be put to the vote immediately, and the President’s ruling shall stand unless overruled by a majority of the representatives present and voting.

4. If a vote is equally divided, the proposal or motion shall be regarded as rejected.

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Also in the mix is the wording of the General Assembly resolution 64/48 that launched the prepcom and negotiation process back in 2009. In Operative Paragraph 5 the Assembly "decides that the United Nations Conference on the Arms Trade Treaty will be undertaken in an open and transparent manner, on the basis of consensus, to achieve a strong and robust treaty." The question is what "undertaken ... on the basis of consensus" actually means. On an ordinary reading of the words, it does not appear to require that every single decision be taken by consensus, although certainly delegations such as Cuba, India, Iran, and others read it that way. The second question is what consensus itself means. Is it unanimity, general agreement, acquiescence, or something else?

The discussions of these issues will surely continue on Day Two...