Hostname: page-component-78c5997874-v9fdk Total loading time: 0 Render date: 2024-11-14T05:29:11.546Z Has data issue: false hasContentIssue false
  • English
  • Français

Will the Third Conference on the Law of the Sea Work According to the Consensus Rule?

Published online by Cambridge University Press:  28 March 2017

Daniel Vignes
Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Notes and Comments
Information
American Journal of International Law , Volume 69 , Issue 1 , January 1975 , pp. 119 - 129
Copyright
Copyright © American Society of International Law 1975

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Jenks, W. , Unanimity, the Veto, Weighted Voting, Special and Simple Majorities and Consensus as Modes of Decisions in International Organizations, in Cambridge Essays in International Law, Essays in Honour of Lord McNair, 488 (1965)Google Scholar; Chai, F. Y. Consultation and Consensus in The Security Council, Unttar (1971)Google Scholar (available also in French); de Lacharrière, G. Consensus et Nations Unies, A.F.D.I. 9–14 (1968)Google Scholar; Bastid, S. Observations sur la pratique du consensus, Multttudo Legum jus unum, Festschrift Für Wilhelm Wengler, 11–25 (1973)Google Scholar; Reuter, P. Quelques réflexions sur le vocabulaire du droit international, Mélanges Trotabas, 423 (1970)Google Scholar.

See also Bailey, S. D. Voting in The Security Council, 75 et seq. (1969)Google Scholar; and the Report of the Special Committee on the Rationalization of Procedures and Organization of the General Assembly, UN GAOR, 26th Sess. Supp.26 (A/8426), paras. 288–89 and Res. 2837 (XXVI) 104, Dec. 17, 1971.

2 This must be distinguished from adoption by acquiescence and adoption by acclamation, both ways sui generis of expressing the common will, but difficult to distinguish from unanimity. Are these really valid voting methods? S. Bastid, supra note 1, at 16. See also F. Y. Chai, supra note 1, at 12 of the French version.

3 Mr. Hoppenot, UN SCOR, 685th Mtg., Nov. 11, 1954.

4 F. Y. Chai and S. Bastid, supra note 1.

5 G. de Lacharriere, supra note 1, at 12 and 14.

6 Ibid.

7 In this connection, it will be recalled that the Special Committee set up at the 22nd Session of the General Assembly (Res. 2340(XXII)) and a predecessor of the Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction had in setting up its Working Parties worked on the basis of consensus among its members, although no formal decision had been taken to that effect. Report in UN GAOR 28th Sess., Supp. 21 (A/9021) para. 4.

8 Economic and Social Council, 56th Sess., Supp. 3 (E/5444) paras. 56-57 and Supp. 3A (E/5462) paras. 56-68. Res. 1835 (LVI), May 14, 1974. A recommendation from the Population Commission is attached to the draft Rules of Procedure laid down by the Economic and Social Council; it states “that it is highly desirable for the World Population Conference, 1974 to reach decisions on the basis of consensus, which is understood to mean, according to United Nations practice, general agreement without a vote, but not necessarily unanimity.’’

9 It should, however, be pointed out that methods of determining whether a text is adopted which do not give rise to a count (unanimity, acquiescence, acclamation, absence of opposition, or consensus) were, it appears, used 115 times during the 28th Session of the UN General Assembly, as against 53 instances of a recorded vote. Twenty years ago a comparison could only have been made between a majority vote and a unanimous vote, other methods not giving rise to a count being, if not unknown, at least hardly distinguishable from unanimity. See Sohn, L. B. United Nations Decision-making, Confrontation of Consensus? 15 Harvard Int. L. J. 438–39 (1974)Google Scholar. Was it therefore necessary to install electronic voting systems?

10 The examination had been started at the session of the UN Seabed Committee in March and April 1973, as its Chairman recalled when he spoke in Caracas on the fourteen months of talks. A/CONF.62/SR.16, at 7.

11 A/CONF.62/2, Nov. 26, 1973.

12 Mainly in unofficial talks and not in plenary session. The suspension of debate to await the outcome of these talks caused the cancellation of a plenary session of the Conference, that for the morning of Monday, June 24. There was such confusion that Le Monde spoke of an adjournment sine die of the Conference (June 26, 1974). On the other hand the Journal of the Conference for June 24, following the cancellation of this session, included a revision calling one plenary session only and not two for that day. There is no smoke without fire; in fact there was no plenary session either on the Monday or the Tuesday (morning).

13 A/CONF.62/30, Rev. 1. Rules of Procedure also in 13 ILM 1199 (1974).

14 U N Doc. A/C.I/PV. 1924.

15 See the thanks to the President after adoption of the Rules of Procedure at the 20th Plenary Meeting of the Conference. At least one state was in distinct disagreement. See also the comments, infra note 17.

16 This text reads as follows:

Bearing in mind the fact that the problems of ocean space are closely interrelated and need to be examined as a whole and the desirability of adopting a Convention on the Law of the Sea which will secure the widest possible acceptance, the Conference should make every effort to reach an agreement on substantive matters by way of consensus and there should be no voting on such matters until all efforts at consensus have been exhausted.

17 At the 19th and 20th Plenary Meetings (A/CONF.62/SR.19 and 20). This twofold adoption by consensus reflects the compromise nature of the whole arrangement. It will also be seen that the Rules of Procedure may only be amended by a considerable majority (Art. 65).

18 UN Docs. A/C.I/PV. 1924–33, 1936, 37, 39, 46, 48. Oct.–Nov. 1973.

19 Except in a private meeting, see the comments by Chile at the 15th Plenary Meeting of the Conference. A/CONF.62/SR.15, at 5.

20 For example, in a very cursory form, the United Kingdom. UN Doc. A/C.1/PV. 1973, at 42–43.

21 UN Doc. A/C.1/PV. 1928, at 51. But for the Israeli delegation, the Gentleman’s Agreement has not the slightest legislative function: it is merely the forerunner of Article 37 which is its practical application, A/CONF.62/SR.16 at 4.

22 For the text of the Gentleman’s Agreement, see supra note 16. The Rules of Procedure (Art. 37(1)), infra note 26, repeat the idea of exhaustion of all efforts to reach general agreement. See also the comments of the delegate of Tanzania at the 16th Plenary Meeting, A/CONF.62/SR.16, at 3, and those of the delegate of Salvador at the 17th Plenary Meeting, A/CONF.62/SR.17, at 2.

23 A/CONF.62/6. Others had proposed four-fifths.

24 It will also be seen that, although it was withdrawn, there was a Peruvian amendment to the draft Rules of Procedure making it possible for related proposals to be “voted on jointly,” thereby allowing the Conference to express its opinion on the principle underlying the proposals, and to discuss them in detail later. A/CONF.62/13.

25 A/CONF.62/SR.17 and 18.

26 This text reads as follows:

1. Before a matter of substance is put to the vote, a determination that all efforts at reaching general agreement have been exhausted shall be made by the majority specified in paragraph 1 of Rule 39.

27 For example, a Soviet proposal for a recommendation from the General Committee before the Conference takes a vote. A/CONF.62/6, Dec. 13, 1973 and A/CONF.62/SR.6, at 2 et seq. This same delegation proposed that the General Committee, should determine whether all efforts expended in a main committee to reach consensus on a matter of substance had failed. A/CONF.62/6 (Amendment to Rule 15).

28 Against subsidiary nonplenary organs, see statements by the Tanzanian delegation in the 8th and 16th Plenary Meeting of the Conference.

29 Apparently, this idea was first postulated in an Australian amendment. A/CONF. 62/10, Dec. 13, 1973. At the Conference itself, at its 8th Plenary Meeting of December 13, the Mexican delegate, Ambassador Casteñeda, spoke in favor of each body deciding whether all efforts to reach a consensus had been exhausted or not (A/CONF. 62/SR.8, at 2 et seq.); the delegate from Cameroon spoke likewise at the 9th Plenary Meeting.

30 This implied indirectly the abolition of the indicative vote initially proposed by the Secretariat (Art. 36 of the draft). In favor of this deletion, Chile at the 8th Session; against, the United States at the 9th.

31 If the first vote on a matter of substance is “protected” by the preliminary question and the various deferments, closure of the debate, on the other hand, since it is a question of procedure, is not subject to the same checks. It is determined, however, by a two-thirds majority and not by a simple majority (Art. 29).

32 What are we to think of the President’s comment at the 4th meeting of the General Committee on August 20, 1974 when, in a debate on where to hold the third session, he said “the host country must be able to supply an electronic voting apparatus.” Perhaps this was intended to guide the delegations in their choice of place.