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Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea

Published online by Cambridge University Press:  27 February 2017

Barry Buzan
Barry Buzan*
Affiliation:
Department of International Studies, University of Warwick, England
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Extract

The Third United Nations Conference on the Law of the Sea (UNCLOS III) is important not only because of the scope and substance of the issues with which it is concerned, but also because it represents a major international experiment in decision making by consensus. Most of the attention it has attracted so far has been focused on the problems, progress, and prospects of the conference as a unique event. Given the magnitude of the matters at stake, not to mention the drama of the proceedings, this is natural enough. In addition, there is the risk of a severe blow to the process of international negotiation in general, and to the United Nations system in particular, should UNCLOS III fail. Only a few writers have so far begun systematically to discuss procedural developments at UNCLOS in terms other than those relating to the success or failure of the conference itself. Jonathan Charney and Bernard Oxman have pointed out the significance of procedural developments and precedents, Robert Eustis has begun the exploration of UNCLOS as a model of multinational negotiation, and Edward Miles has argued that nothing similar to UNCLOS should be tried again. United Nations concern about problems in the process of international negotiation in general is demonstrated by General Assembly Resolution 32/48 (December 8,1977), requesting a report on the techniques and procedures used in the elaboration of multilateral conventions.

Type
Research Article
Information
American Journal of International Law , Volume 75 , Issue 2 , April 1981 , pp. 324 - 348
Copyright
Copyright © The American Society of International Law 1981

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References

1 The bibliography on UNCLOS is now enormous. Very useful overviews can be found, inter alia, in Miles, The structure and effects of the decision process in the Seabed Committee and the Third United Nations Conference on the Law of the Sea, 31 INT'L Organization 2 (1977); and the series of sessional reports by Stevenson, & Oxman, , The Preparations for the Law of the Sea Conference, 68 AJIL 1 (1974)CrossRefGoogle Scholar; The Third United Nations Conference on the Law of the Sea: The 1974 Caracas Session, 69 AJIL 1 (1975);—The 1975 Geneva Session, 69 AJIL 763 (1975); and Oxman, The Third United Nations Conference on the Law of the Sea: The 1976 New York Session, 71 AJIL 247 (1977);—The 1977 New York Sessions, 72 AJIL 57 (1978);—The Seventh Session (1978), 73 AJIL 1 (1979);—The Eighth Session, 74 AJIL 1 (1980). For Professor Oxman's report on the ninth session, see p. 211 supra. The present author's contribution to this literature includes Seabed Politics (1976).

2 It can be argued that failure to produce a full, agreed convention on the law of the sea would constitute failure inasmuch as the conference would not have fulfilled its declared objective. Such an argument, however, would ignore the various lesser levels of accomplishment which might be seen by many as very substantial achievements. These range from partial conventions down to widespread use, as a guide to unilateral lawmaking by states, of general frameworks developed at UNCLOS. See law of the sea: conference . Outcomes and Implementation (Miles & Gamble eds. 1976). There is also the problem that a successful outcome in procedural terms (i.e., a convention) may prove to be a failure in practical implementation.

3 Charney, United States Interest in a Convention on the Law of the Sea: The Case for Continued Efforts, 11 Vand. J. Transnat'L L. 39 (1978); and Oxman, 71 AJIL at 247.

4 Eustis, , Procedures and Techniques of Multinational Negotiation: The LOS III Model, 17 VA. J. INT'LL. 219 (1977).Google Scholar

5 Miles, An Interpretation of the Caracas Proceedings, in Law OF The Sea: Caracas And Beyond 40 (Proceedings of the 9th Annual Conference of the Law of the Sea Institute, Christy et al. eds., 1975).

6 This report was originally due by the 34th session (1979), but had not yet become available at the time of writing.

7 Jenks, Unanimity, the Veto, Weighted Voting, Special and Simple Majorities and Consensus as Modes of Decision in International Organisations, in Cambridge essays in international law: essays in honour of lord mcnair 48, 56-61 (1965); Vignes, , Will the Third Conference on the Law of the Sea Work According to Consensus Rules?, 69 AJIL 119, 119-22 (1975)Google Scholar; Okularczyk, , Consensus in the Decision-Making Process of the United Nations Organs, 1 STUD. INT'L REL. 121, 126-32 (1973).Google Scholar

8 Jenks, supra note 7, at 59-61; and Okularczylc, supra note 7, at 130-31.

9 On the procedures of the ILC, see UN Doc. A/CN.4/325, at 21-27 (1979).

10 See also S. Bailey, Voting In The Security Council 75-83, 198-99 (1969).

11 Meltzer, , Restructuring the UN System: Institutional Reform Efforts in the Context of North-South Relations, 32 INT'L Organization 994, 1004-06 (1978).Google Scholar

12 UN Doc. A/CONF.62/WP.10/Rev.3, Art. 161 (1980).

13 Jenks, supra note 7; Haemmerli, , International Norm-Creation for a Divided Society: A Reappraisal of Some Perennial Problems, 20 Orbis 315 (1976)Google Scholar; and Charney, supra note 3.

14 For a discussion of weighted voting in international economic organizations, see Zamoraz, , Voting in International Economic Organizations, 74 AJIL 566 (1980).CrossRefGoogle Scholar

15 Charney, supra note 3, at 43.

16 Winham, , Negotiation as a Management Process, 30 WORLD POL. 87, 111 (1977).Google Scholar

17 For the contrary view, see Ruggie, , On the Problem of ‘the Global Problematique': What Roles for International Organisations?, 5 Alternatives 517, 537-38 (1980).CrossRefGoogle Scholar

18 Ibid.

19 Miles, supra note 1, at 180.

20 UNCLOS III, Rules of Procedure, UN Doc. A/CONF.62/30/Rev.2 (1976).

21 Note 11 supra.

22 See B. Buzan, supra note 1, at 269-300.

23 Sohn, , Voting Procedures in UN Conferences for the Codification of International Law, 69 AJIL 333 (1975)CrossRefGoogle Scholar; Miles, supra note 1, at 180-85; Vignes, supra note 7, at 123; B. Buzan, supra note 1, at 216-18.

24 UN Doc. A/CONF.62/30/Rev.2, note20 supra, at 8-9, 17 (1976), reprinted in the appendix to this article at p. 347.

25 Vignes, supra note 7, at 124.

26 A single negotiating text is one in which single, as opposed to sets of alternative, draft articles are provided for all issues on the agenda. It represents a major step away from a situation in which each agenda item is cluttered with alternative texts representing the principal contending positions. Such a text is not negotiated–it has no status and implies no commitment—but it does serve as a coherent basis on which to negotiate, and it performs the vital function of pulling states away from their varied starting positions towards a common position. To be useful, a single negotiating text must reflect the main trends of opinion, and it is likely to have a substantial influence on any agreed outcome. The decision to produce a single negotiating text in a negotiating body like the Sea-bed Committee, instead of getting the International Law Commission to produce a draft convention as it had done for UNCLOS I and II, was taken because of the intensely political nature of the struggle over the new ocean regime. A major transformation in international law had to be handled through political rather than through legal mechanisms.

27 On which see Buzan, , ‘United We Stand …': Informal Negotiating Groups at UNCLOS III, 4 Marine Pol'y 183 (1980).Google Scholar

28 Keohane, , The Study of Political Influence in the General Assembly, 21 INT'L Organization 221,233 (1967).Google Scholar

29 Miles, supra note 1, at 198.

30 UN Doc. A/CONF.62/WP.8, pts. I - IV (1975), pts. I—III reprinted in 14 ILM at 682, 710, and 743, respectively, and pt. IV in lb id. at 61. The conference President produced part IV to cover settlement of disputes, which was not part of the mandate of any committee.

31 On the Evensen group, and the relationship between informal (private) and formal (official) structures at UNCLOS, see Buzan, supra note 27. See also Oxman & Stevenson, supra note l,69AJILat 764, 769-70.

32 There exists a Drafting Committee as part of the formal structure of UNCLOS, but it was politically emasculated by a fight for the chairmanship in 1973. Its formal task is anyway not to take political initiatives in proposing compromise formulations, but to turn agreed formulations into proper legal language.

33 UN Doc. A/CONF.62/C.2/WP.1 (1974). Miles, supra note 1, at 185-86, characterizes this text as “the major achievement of … the Caracas session.“

34 UN Doc. CP/cab.l2/C.l and Rev.l (1975).

35 8 UNCLOS III, Official Records, UN Doc. A/CONF.62/WP.10 and Add.l (1977), reprinted in 16 ILM 1108 (1977).

36 Interviews with delegates. See also, inter alia, Smith, The Seabed Negotiations and the LOSC— Ready for Divorce?, 18 VA. J. INT'L L. 43, 44-46, 55 (1977); Miles, supra note 1, at 222; and Oxman, supra note 1, 72 AJIL at 58-59.

37 UN Press Release SEA/63 (1978).

38 UN Press Release BR/79/33, at 3 (1979).

39 10 UNCLOS III, Official Records 6, 8, UN Doc. A/CONF.62/62 (1978).

40 For example, the Working Group of 21 on First Committee matters, the Group of Legal Experts on the Settlement of Disputes Relating to Part XI (seabed), the Group of Legal Experts on Final Clauses, and the Group of 38 on continental shelf issues. See UN Press Release BR/80/9, at 27 (1980).

41 UN Doc. A/CONF.62/WP.10/Rev.l (1979), reprinted in 18 ILM 686 (1979).

42 UN Doc. A/CONF.62/WP.10/Rev.2 (1980).

43 UNDoc.A/CONF/WP.lO/Rev.3andAdd.l andCorr.1(1980).reprinted in 19 ILM 1131 (1980).

44 The argument about indivisibility of the package is also made by Eustis, supra note 4, at 252-54, though he assumes a final decision by voting.

45 This observation is also made by Okularczyk, supra note 7, at 136-37; and by Miles, supra note 1, at 186. Jaipal, A Personal View of Consensus Making in the UN Security Council, 2 INT'L SECURITY 195 (1978), gives some insight into the chairman's position, although he is too diplomatic to reveal much of interest. The discussion of chairmen here includes the Presi dent of the conference, who is in many respects the most important of the formal chairmen. He not only chairs the Plenary sessions, but also leads the revision team, and is responsible for managing and adjusting the consensus method overall.

46 Buzan, supra note 23. Okularczyk, supra note 7, at 135, also argues for the importance of informal groups using evidence from other cases, but Eustis, supra note 4, at 254-55, gives less weight to their role in relation to formal structures.

47 This problem is discussed in detail in B. Buzan, supra note 1, particularly ch. 11.

48 Oxman, supra note 1, 73 AJIL at 38.

49 Unilateralism is advocated as a way of pushing the development of international law by Gotlieb & Dalfen, , National Jurisdiction and International Responsibility: New Canadian Approaches to International Law, 67 AJIL 229 (1973).Google Scholar

50 See UN Docs. A7CONF.62/BUR/SR.41 (1978); A/CONF.62/77 (1979); and A/CONF.62/ 106 (1980). The actual passage of such legislation by the United States in the summer of 1980 does not seem to have caused major difficulties in the negotiations, but this does not mean that it would not have done so if passed earlier in the 1970's.

51 Zartman, , Negotiations: Theory and Reality, 29 J. INT'L AFF. 69, 71-77 (1975).Google Scholar

52 Winham, , Practitioners’ Views of International Negotiation, 32 WORLD POL. III, 132 (1979).Google Scholar

53 F. IKLÉ, How nations negotiate 192 (1964).

54 Adjustment in a different sense may be necessary for foreign ministry establishments if long, multi-session negotiations become a feature of international relations. Such negotiations need to be treated more like standing international organizations than like short-term meetings, and failure to do so can create difficulties. A lengthy, specialized negotiation may well benefit from having relatively stable delegate lists. If there is too high a turnover of delegates, then personal ties and information are constantly lost, and much energy has to be consumed in resocializing new participants. The advantages of attaching key individuals to specific negotiations, however, may clash with career patterns and rotation procedures in many foreign ministries. The peculiar demands of UNCLOS, and the political difficulty of accepting its slow progress, have made it unpopular with some foreign office establishments, and this may be a factor in willingness to use consensus techniques in other forums. If UNCLOS itself turns out a success, this resistance might be minimal. But if UNCLOS fails to complete its task, then its record might be used to try to condemn consensus procedures in general.

55 Both Meltzer, supra note 11, at 1008 and 1015, and Okularczyk, supra note 7, at 146-48, point to this danger. Examples of ambiguous outputs are: the 200 meters or limits of exploitation criteria for the edge of the continental shelf in the 1958 Geneva Convention on the Continental Shelf, the use of the undefined term “peaceful purposes” in the 1970 Declaration of Principles resulting from the work of the Sea-bed Committee, and the more recent attempt in Negotiating Group 7 at UNCLOS to contain competing positions on principles for delimiting sea boundaries between states (see UN Press Release SEA/396, at 30-31 (1980)).

56 On aspects of this problem in relation to sea boundaries, see B. Buzan, A Sea Of Troubles? Sources of dispute in the new ocean regime (Adelphi Paper No. 143-, 1978).

57 Gotlieb & Dalfen, supra note 49.

58 Oxman, supra note 1, 73 AJIL at 38.

59 Winham, supra note 16, at 104; and Zartman, supra note 51, at 75.

60 Vignes, supra note 7, at 121.

61 Haemmerli, supra note 13, at 338.

62 This last argument applies principally to active consensus procedures. The UNCLOS Rules of Procedure may well be a useful model for the simpler matter of passive consensus.

1 Approved by the United Nations General Assembly at its 2169th meeting on November 16, 1973.