Dear Nicholas,
In the practice of the UNGA, Resolutions do not have footnotes, but member
States can make a statement on the record to the effect that, had a vote been
called, they would have voted against or abstained for reasons they explain.
This was not unusual in the 1980s and 1990s. The only example I can cite is
taken from R. Sabel, Procedure at International Conferences (CUP, 1997), p.
312, who gives the reservation made by an unnamed delegation at the 19th
meeting of the Sixth Committee of the UNGA in 1976. The record is in UN Document
A/C.6/31/SR.19, paras 53-69. Sabel also cites a UN Secretariat legal opinion
that “the term consensus was used to describe a practice under which every
effort is made to achieve unanimous agreement, but that if it could not be
done, those dissenting from the general trend were prepared simply to make their
position or reservations known and placed on the record.” The reference is
1974 UN Juridical Yearbook 163, published in 1976. Finally, Sabel cites
Amb Galindo Pohl (El Salvador) at the 17th meeting of the Third UN Conference on
the Law of the Sea (Caracas 1974) who stated that he would have preferred the
term “consensus” in the Rules of Procedure “especially if it was defined as an
agreement to which there was no formal opposition even if some delegations made
reservations or comments.” (Off.Rec. vol. I, p. 44).
My former colleague, Tony Aust, has written about practice, citing the
rules of the OECD which define consensus as “the absence of any objection
expressed by a representative and submitted by him (sic) as constituting an
obstacle to the taking of the decision.” (The reference is A I Aust, Modern
Treaty Law and Practice, p. 69.)
Practice may well vary from one body to another. The context is important:
something turns on whether the body concerned is a political, deliberative body
such as the UNGA, a law-making body such as the LOS Conference, or a judicial or
quasi-judicial body.
Kind regards,
David Anderson
Sent: Friday, July 12, 2013 9:42 PM
Subject: Re: [INT-BOUNDARIES] Boundaty line between consensus /
"disensus"
Dear David
Many thanks for reading me and your very kind answer.
I firsta asked to some colleagues working in different PM at OAS, but also
some of them working at UN in NY and GVA to send me some precise examples of
resoluctions having such footnotes (being adopted by consensus).
For the moment, their response is "I´ve never seen such a thing", but its
is maybe because they have a short experience as diplomats. If you know of one
precise resolution inlcuding such footnotes, please let us know.
Bolivia seems ready to go before UN and others States ready to
support it (incluidng - possibly - some UN Permanent Members at
UNSC) so we will have all UN members having the possibility to establish a
fact-finding mechanism that includes due process rules
Sincerely yours
Nicolas Boeglin