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...