Monday, April 1, 2013

The failure of consensus

by Ray Acheson and Beatrice Fihn, Reaching Critical Will of WILPF

The events of Thursday evening mark the second time that governments have failed to adopt the Arms Trade Treaty (ATT) by consensus.

Drama erupted on the last day of the final UN Conference on the ATT when Iran, the Democratic People’s Republic of Korea (DPRK), and Syria objected to the adoption of the treaty text. After a period of confusion and consultations, the three states reiterated their intention to block its adoption, citing among other things the text’s imbalance between importers and exporters and the failure of the text to incorporate their proposals.

Later on in the evening, several other countries indicated they would not support the adoption of the current text—though they had not joined Iran, DPRK, and Syria in blocking it. These countries included Bolivia, Cuba, Indonesia, and Venezuela. In addition, Armenia, Algeria, Belarus, India, Nicaragua, Pakistan, Russia, and Sudan, as well as the Arab Group, expressed serious reservations about the text.

The delegation of Mexico, in an attempt to salvage the conference, declared that there is no definition of consensus inside the UN and encouraged the President to proceed with adoption of the text without a vote. A number of states supported this proposal, but the governments of Russia and Iran objected. Other states such as China and India also opposed any “manipulation of the rules of procedure.” The President ruled that consensus had not been reached and thus the treaty could not be adopted.

The Liberian representative, lamenting for the victims of armed conflict, said the UN had become a victim of its own rules of procedure.

Indeed, some in civil society as well as governments have repeatedly warned that blind faith in, and strict interpretation of the consensus rule has badly damaged UN-affiliated disarmament and arms control processes.

The abuse of the rule of consensus by a handful of states has played a significant role in preventing progress on reducing the human suffering caused by weapons. The failure to adopt an Arms Trade Treaty is just the latest example of this.

The last multilateral treaty on weapons that was adopted by consensus within the UN was the Chemical Weapons Convention in 1992. Since then, the international community has failed over and over again to adopt treaties with this rule.

The abuse of the consensus rule has led to the paralysis in the Conference on Disarmament, which has failed to even start negotiations on disarmament for over fifteen years, let alone complete any treaties. And if agreements have been reached, it has led to lowest common denominator outcomes, like the United Nations Programme of Action on small arms and light weapons (UNPoA), which while establishing some important precedents, was undermined by the demands of a few skeptical states for weaker provisions and a non-legally-binding status. As a result, the review cycle of the UNPoA is often composed of merely a reiteration of support for the existing framework rather than serious evaluation of its practical implementation and identification of areas of possible improvement and future development. 

The rule of consensus in the ATT process meant that the countries pushing for a strong treaty made several compromises during negotiations in order to bring more skeptical states on board. Thus the treaty text contains substantial limitations and loopholes. Its scope is very narrow, providing only for consideration of a limited number of weapon systems and transfer activities. Its provisions covering ammunition, munitions, parts, and components are not comprehensive and it does not provide for any increased transparency in the international arms trade. There are risks that, without proper interpretation and implementation, the treaty could actually legitimize rather than stigmatize irresponsible transfers. See ATT Monitor 6.9 for a comprehensive overview of these flaws.

However, the treaty does require exporting states to assess the risk that the weapons will be used or diverted for the use of committing violations of human rights or IHL, for committing or facilitating acts of gender-based violence or violence against children, or for contributing to terrorism or transnational organized crime.

The ATT process has set new norms against transferring arms, and the treaty must now be implemented in accordance with the strongest possible interpretation of its provisions in order to adequately contribute to reducing human suffering.

But the ATT process also highlighted once again the failure of consensus.

While some governments argue that the rule of consensus protects their security interests, it in fact functions to undermine the security of the majority—both governments and peoples—that must rely on the rule of law rather than the balance of terror to protect them.

This state of affairs negates a basic principle of the UN and especially its General Assembly—the sovereign equality of states—by allowing the interest of one or a handful of states to trump the interests of all the others. The proper exercise of sovereign choice is when a state decides whether or not to ratify an international agreement, not in being allowed to prevent that agreement from ever being achieved.

In stark contrast to the failures of the consensus rule, significant achievements such as the Mine Ban Treaty (1997) and the Convention on Cluster Munitions (2008) have been made when avoiding such rules. These treaties have banned a specific category of weapons and created strong norms of behaviour among the international community. Despite not being negotiated by consensus and not yet having yet reached universal adherence, these treaties have led to a virtual halt or at least a significant decrease in the global trade in the weapons they banned, even among states that still refuse to officially join the treaty.

Unanimous agreements are important goals, but cannot be pre-conditions that prevent all progress. Given the plethora of current disarmament and arms control challenges demanding urgent action, UN processes operating by consensus must evolve or they will eventually—soon—become obsolete.

The opportunity to adopt the ATT has not yet been lost. Kenya on behalf of Argentina, Australia, Costa Rica, Finland, Japan, Mexico, New Zealand, Nigeria, Norway, the United Kingdom, and the United States introduced a draft resolution to forward the draft text to the General Assembly for adoption. The draft resolution calls for the General Assembly to adopt the ATT, requests the Secretary-General to open it for signature on 3 June 2013, and calls upon states to consider signing and ratifying the treaty.

The General Assembly will convene a meeting on 2 April, to which the President of the negotiating conference is to report. It is anticipated that the General Assembly resolution circulated by Kenya will be considered at that meeting.

As Nigeria’s delegation said last night, the Arms Trade Treaty is an opportunity for “enhancing the rule of law against the rule of the gun.” A handful of countries should no longer be allowed to hold back the rest of the international community in tackling some of the most dramatic problems of our age. The failure to adopt an Arms Trade Treaty shows that the international community could do better by avoiding the rule of consensus and should refrain from putting such conditions on any future disarmament and arms control negotiations.

This article draws upon a civil society presentation on disarmament machinery and consensus, which was drafted by Reaching Critical Will and supported by a large number of NGOs and was delivered to the UN General Assembly First Committee in October 2012.