5 - Decision-Making

Question 1

Elements of the background to the creation of an IO? (4)

Answer 1

1/ interdependence in a particular field

2/ need to cooperate

3/ common interest

4/ => this leads to the institutionalisation of cooperation

Question 2

How can decision-making be relevant for an IO? (2)

Answer 2

1/ respond to dvpts in practice

2/ pursue the aims of the IO

Question 3

What are some of the aspects of decision-making in IOs? (5)

Answer 3

1/ political
2/ economic
3/ cultural 
4/ language 
5/ legal

Question 4

Examples illustrating decision-making has legal aspects? (3)

Answer 4

1/ membership of Kosovo and Palestine in some IOs but not in the UN

2/ crisis at the WTO regarding the election of members of the AB

3/ vetoes used in EU (mainly on policy & security matters)

Question 5

What do the rules on decision-making determine?

Answer 5

The power and influence of members in the IO

=> member States try to control new rules on decision-making

Question 6

What is an example illustrating the high stakes rules on decision-making may have?

Answer 6

The veto in the UNSC

Question 7

Info surrounding the veto in the UNSC? (6)

Answer 7

1/ Soviet Union wanted veto for every issue, Western powers held less extreme views

2/ decision reached in Feb/ 1945 (Yalta Agreement ; UK, US, USSR)

3/ UN Conference on International Organization in April-June 1945

4/ P5 supported Yalta formula, massive criticism of veto by all other States

5/ list of 25 questions addressed to P5

6/ veto portrayed as necessary “in the present condition of the world” for exercise of primary responsibilities of the UNSC

Question 8

What position has revealed itself to be incorrect regarding the veto in the UNSC? (2)

Answer 8

1/ US + China predicted the veto will hardly be used

2/ as of 6 March 2022, 301 vetoes cast

Question 9

What could be considered as an even bigger problem than the veto in the UNSC? (3)

Answer 9

1/ Article 108 UN Charter which codifies vetoes on reform of veto

2/ not only legalized hegemony, but also frozen hegemony

3/ veto recognized for most powerful States, but power relations change

Question 10

What are 2 key questions surrounding the veto in the UNSC?

Answer 10

1/ is the veto antagonistic, but impossible to abolish?

2/ is the veto still a realistic precondition for the UN collective security system?

Question 11

How to find out how decisions are taken by an organ of an IO? (3)

Answer 11

1/ constitution

2/ rules of procedure

3/ practice

Question 12

Example of provision codifying rule on decision-making?

Answer 12

Article 27(3) UN Charter

=> decisions of UNSC on all other matters must be made by affirmative vote of 9 members, incl. concurring votes of P5

Question 13

What question did Article 27(3) UN Charter give rise to?

Answer 13

What is the consequence of one or more P5 members abstaining?

Question 14

How relevant is practice with respect to decision-making in the UNSC? (2)

Answer 14

1/ since 1940s, various instances of P5 member(s) abstaining from voting => this was always accepted

2/ ICJ rendered Namibia AO in 1971 on this matter

Question 15

What did ICJ hold in Namibia AO (1971)? (4)

Answer 15

1/ UNSC proceedings extended over a long period of time

2/ practice interpreted consistently and uniformly

3/ practice continued unchanged after amendment UN Charter

4/ practice generally accepted by members of the UN

=> thus, it evidences a “general practice of that Organization”

Question 16

What is the Namibia AO an example of? (2)

Answer 16

1/ evolutive interpretation

2/ interpretation contra legem?

Question 17

What are some general issues of IO decision-making? (3)

Answer 17

1/ legal basis

2/ initiative

3/ voting/consensus

Question 18

Premise of IO decision-making? (2)

Answer 18

1/ each organ has its own rules + practice

2/ there are general features and principles

Question 19

Why is the legal basis of IO decision-making important? (2)

Answer 19

1/ attribution principle

2/ more specific reasons (e.g. clarification about measures involved ; determination of decision-making procedure)

Question 20

Who has the right to take initiatives for decisions to be taken by IOs? (3)

Answer 20

1/ in principle, member States in their capacity as members of the IO

2/ exceptionally, independent persons or organs (e.g. SG)

3/ main exception : European Commission + (almost) exclusive right of initiative

Question 21

What is the general broad development of rules on voting? (3)

Answer 21

1/ early IOs : unanimity

2/ UN and other IOs : majority voting

3/ practice and later rules : consensus

Question 22

What is consensus? (2)

Answer 22

1/ difficult to find a definition

2/ see however WTO Art. IX, footnote : “no Member, present at the meeting when the decision is taken, formally objects to the proposed decision”

Question 23

What are the disadvantages/advantages of consensus? (2)

Answer 23

1/ disadvantage : could be impossible or take very long to reach an agreement

2/ advantage : helpful if there is an alternative, such as “the shadow of a vote” when no consensus is reached

Question 24

Examples of instruments containing provisions related to consensus? (4)

Answer 24

1/ OPCW (Art. VIII(B)(18))

2/ ASP (Arts. 112(7) & 121(3) Rome Statute)

3/ AIIB (Section 9(a) Rules of Procedure of the Board of Governors)

4/ Int. Organisation of Vine and Wine (Art. 5(2)(c))

Question 25

Examples illustrating the practice of decision-making by consensus? (4)

Answer 25

1/ President of Conference of the Parties to the Convention on Biological Diversity : consensus does not mean unanimity but broad agreement (objections to be reflected in report of meeting)

2/ ICC Kampala Review Conference : Japan’s intervention

3/ UN Climate Change Conference, Cancun : opposition of Bolivia vs President Espinosa (consensus does not mean unanimity, no right of veto)

4/ UN Climate Change Conference, Paris

Question 26

How does Art 108 UN Charter prevent reform? (2)

Answer 26

1) 2/3rds UNGA majority required for amending charter

AND

2) ratification by 2/3rds UN MS INCLUDING P5

Question 27

What was the ICJ’s finding in the Namibia AO? (2)

Answer 27

1) UNSC resolutions could still pass under Art 27(3) if P5 abstained
2) this was due to the established practice of UNSC

Question 28

What is a further advantage of voting by consensus? (2)

Answer 28

1) decision has general support of MS

2) this provides good foundation for implementation by MS

Question 29

What is 2 further disadvantages of voting by consensus? (2)

Answer 29

1) Untransparent
- chair has informal bilateral meetings to form compromise
- not clear to everyone how proposal is prepared

2) might lead to excessively watered down proposals

Question 30

How has the US obstructed the WTO? (2)

Answer 30

1) election of judges to AB is by consensus, which the US has blocked
2) cases appealed from panels cannot be heard

Question 31

How has the WTO responded to the malfunction of AB and how is it problematic? (3)

Answer 31

1) created Multi Party Interim Arrangement (MPIA) (satelite organization) to hear appeals
2) MPIA is treated like the AB
3) circumvents the procedural rules of the IO for treaty modification (Cf. Art 41 VCLT)