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Voting Procedures in United Nations Conferences for the Codification of International Law

Published online by Cambridge University Press:  28 March 2017

Louis B. Sohn
Louis B. Sohn*
Affiliation:
Harvard Law School
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Extract

The question of voting procedure in international conferences convoked to codify international law has been discussed for more than a hundred years, starting with the first Geneva Red Cross Conference in 1864. At the Hague Peace Conferences of 1899 and 1907 important departures were made from the unanimity rule in favor of near-unanimity or quasi-unanimity. Further steps toward a two-thirds rule were taken by the League of Nations in connection with the Hague Codification Conference of 1930. The question arose anew when the first United Nations conferences were held, and in particular as soon as the United Nations started its ambitious program for the progressive development of international law and its codification, pursuant to Article 13(1) (a) of the UN Charter.

Type
Research Article
Information
American Journal of International Law , Volume 69 , Issue 2 , April 1975 , pp. 310 - 353
Copyright
Copyright © American Society of International Law 1975

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References

1 For a discussion of the development of conference voting rules during the period from 1864 to 1939, see Sohn, , Voting Procedures in Early International Conferences for the Codification of International Law, to be published in Jessup, and Wilner, (eds.), Essays in Honor of Wolfgang Friedmann (1975)Google Scholar. In addition to earlier writings on the subject, cited therein, the following contributions should be considered for the period reviewed here: Bastid, , Observations sur la pratique du consensus, 1 Multitudo Legum Ius Unum: Festschrift Für Welhelm Wengler 11-25 (1973)Google Scholar; Bowett, , The Law of International Institutions 358-64 (2nd ed. 1970)Google Scholar; Claude, , Swords into Plowshares: The Problems and Progress of International Organization 118-62 (4th ed. 1971)Google Scholar; Daudet, , Les Conférences des Nations Unies Pour la Codification du Droit International 240-49 (1968)Google Scholar; Dunn, , UN Consensus: Analysis of a Non-Vote, 1 Interdependent, No. 4, at 5 (1974)Google Scholar; Jenks, , Unanimity, The Veto, Weighted Voting, Special and Simple Majorities and Consensus as Modes of Decision in International Organizations, in Cambridge Essays in International Law: Essays in Honour of Lord McNair 48-63 (1965)Google Scholar; Jessup, , Parliamentary Diplomacy: An Examination of the Rules of Procedure of Organs of the United Nations, 89 Recueil des Cours 181, at 241-51 Google Scholar; Kaufman, , Conference Diplomacy: an Introductory Analysis 36-44 (1968)Google Scholar; Kolasa, , Voting in International Universal Organizations 7-146, 155-59 (in Polish, with an English summary) (1973)Google Scholar; Lacharrière, , Consensus et Nations Unies, 14 Ann. Francais de Droit International 9-14 (1968)Google Scholar; 2 Schermers, , International Institutional Law 327-64 (1972)Google Scholar; Sohn, , United Nations Decision Making: Confrontation or Consensus? 15 Harvard Int. L.J. 438-45 (1974)Google Scholar; Stavropoulos, , Procedural Problems of the Third Conference on the Law of the Sea, 6 UNITAR News, No. 1, at 16-20 (1974)Google Scholar; Thompson, , American Diplomacy and Emergent Patterns 202-08 (1962)Google Scholar; Vallat, , Voting in the General Assembly of the United Nations, 31 Brit. Y.B. of Int. L. 273-98 (1954)Google Scholar.

2 I Proceedings and Documents of The United Nations Monetary and Financial Conference, 1944, U.S. Dept. OF State Publication 2866, at 66 (1948).

3 Id. 93.

4 Id. 104. This statement was not completely accurate, as the regulations provided that they may be modified “only upon the recommendation by a two-thirds vote of the Steering Committee and by vote of two-thirds of the Conference meeting in plenary session.” Id. 68.

5 Id. 1045, 1088-91.

6 1 Proceedings of the International Civil Aviation Conference, 1944, U.S. Dept. of State Publication 2820, at 20 (1948).

7 Id. 90-101. While the London Conference for the Establishment of UNESCO was later (November 1945), it might be proper to note here that the question arose at that Conference about the meaning of the phrase “a majority of the members present and voting,” as fear was expressed that “snap” votes might be taken in very small meetings. To avoid that, the phrase “a majority of the members of the Conference” was substituted. UNESCO, Preparatory Commission, Conference for the Establishment of the United Nations Educational, Scientific and Cultural Organization 16-17 (1946). After various amendments were rejected by the Conference, the decisions of the Conference were adopted unanimously. Id. 61-79.

8 5 Documents of The United Nations Conference on International Organization (hereinafter UNCIO Docs.) 16-17 (1945).

9 Id. 86.

10 Id. 142-43.

11 Id. 175. For the vote on the Argentine question, see 1 id. 358-59.

12 5 id. 183.

13 Id. 176.

14 Id. 408-09.

15 Id. 410

16 Id . 421-22,430.

17 Id. at 187-88, 198. See also Russell, , A History of the United Nations Charter 643-45 (1958)Google Scholar.

18 5 UNCIO Docs. 197. See also 2 id. 588.

19 5 id. 254-56, 480-87, 498-502; 7 id. 193-96; 9 id. 44-45.

20 For a comparison between the methods of decisionmaking at the 1919 Paris Peace Conference and at the San Francisco Conference, see United Kingdom, A Commentary on the Charter of the United Nations, Br. Parl. Papers, Misc. No. 9 (1945), CMD. 6666,. at 4-5 (1945).

The 1919 Peace Conference should be also compared with the Paris Peace Conference of 1946, which discussed the draft peace treaties with Italy, Bulgaria, Hungary, Romania, and Finland. That Conference was limited to making recommendations to the Council of Foreign Ministers (i.e. the four major powers), though as noted by the U.S. Secretary of State, these “recommendations were a most important, if not the determining factor,” in settling the final text of the treaties. Treaties of Peace with Italy, Rumania, Bulgaria and Hungary: Message from the President of the United States, S. Doc. Exec F, G, H, and I, 80th Cong., 1st Sess. at 2. See also Third Session of the Council of Foreign Ministers, 16 Dept. State Bull. 183, at 184 (1947).

Whether these recommendations should be adopted by a two-thirds vote of the Conference or by a mere majority, as wanted by the smaller powers, led to difficulties before the Conference and occupied a large part of the Conference itself. A United Kingdom compromise was finally adopted, by a vote of 15 to 4 (USSR, Byelorussia, Ukraine, and Yugoslavia), with 2 abstentions (Czechoslovakia and Poland). It authorized the submission to the Council of Foreign Ministers of not only recommendations adopted by a majority of two-thirds of the members of the Conference, but also recommendations “which obtained a majority of more than half but less than two-thirds of the members of the Conference.” [1946] 2 Foreign Relations of the United States, at 40, 792-99, 802, 804-15, 817-34, 837-39, 852-54 (1970); 3 id. at 131-63, 240-41; 4 id. at 796-99. See also U.S. Dept. of State, Paris Peace Conference, 1946: Selected Docs. 35-70 (1947); France, 1 Recueil des Documents de la Conférence de Paris 94-154 (1946)Google Scholar; Molotov, V. M., Speeches at the Paris Peace Conference 7-29 (1946)Google Scholar; New Zealand, The Conference of Paris: Report of The New Zealand Delegation 6-10, 19-21 (1947)Google Scholar; Opie, , The Search for Peace Settlements 90-91 (1951)Google Scholar.

At the San Francisco Conference for the Conclusion and Signature of the Treaty of Peace with Japan in 1951, a proposal to refer the draft rules of procedure (which contained no voting provisions and limited drastically the agenda of the Conference) to a Committee on Procedure was rejected, and the draft rules were adopted by the Conference by a vote of 48 to 3. U.S., Dept. of state, Conference for the Conclusion and Signature of the Treaty of Peace with Japan: Record of Proceedings 22-26, 38, 46-68, 282-93 (1951). See also Dunn, , Peace-Making and the Settlement with Japan 172-86 (1963)CrossRefGoogle Scholar; JESSUP, supra n. 1, at 247-51.

21 UN GAOR, 2nd Sess., Resolutions (A/519), at 104-05 (1948).

22 UN Doc. E/836, at 4-5 (1948).

23 UN Doc. E/AC.28/3, Rules 3, 7, and 10 (1949). Similar provisions were contained in the draft rules prepared by the Council’s Committee on Procedure. UN Doc. E/1186, Rules 6, 9, and 11 (1949); UN ESCOR, 8th Sess., Annex, at 30-31 (1949).

24 ESC Res. 220 (VIII), March 2, 1949; UN ESCOR, 8th Sess., STOP. 1 (E/1310), at 41—42 (1949). The Soviet Union and three other countries voted against the binding force of Council decisions. UN ESCOR, 8th Sess., at 405 (1949).

25 UN GAOR, 4th Sess., 6th Comm., at 352 (1949). Some delegates expressed the view that the rules themselves were, however, binding. Id. at 352-53. Concerning the binding force of the, decisions of the Council, see also 3 Repertory of Practice of United Nations Organs 314-16 (1955).

26 UN GAOR, 4th Sess., 6th Comm., at 369.

27 Id. 368. For the report of the Sixth Committee on these changes, see UN Doc. A/1165 (1949); UN GAOR, 4th Sess., Plenary Meetings, Annex, at 202-05 (1949).

28 UN GAOR, 4th Sess., Plenary Meetings 496 (1949). For the text of the rules, see GA Res. 366 (IV), Dec. 3, 1949; UN GAOR, 4th Sess., Resolutions (A/1251), at 64-65 (1949).

29 UN Conference on the Law of the Sea, Off. Rec, Vol. I, at 172-75 (1958).

30 2 id. 4.

31 Id. xxxiii.

32 Second UN Conference on the Law of the Sea, Summary Records of Plenary Meetings and of Meetings of the Committee of the Whole xxviii–xxxii, 4-6 (1960). It may be noted that after a crucial vote at the Conference failed by one vote, a motion for reconsideration was also not carried because of a failure to obtain a two-thirds majority. Id. 30-32.

33 UN Conference on Diplomatic Intercourse and Immunities, Off. Rec , Vol. I, at xxv, 5 (1962).

34 UN Conference on Consular Relations, Off . Rec , Vol. I, at xxxii, 8 (1963).

35 UN Conference on the Law of Treaties, 1st and 2nd Sess., Off. Rec., Docs, of the Conference 290 (1971).

36 Article 15(2) of the Fitzmaurice Draft, [1956] 2 Y.B. Int. L. COMM. 110. In commenting on this provision, Sir Gerald noted tersely that “[i]t is necessary to have some fundamental rule to govern the process of the adoption of texts. This seems the only possible rule, in practice.” Id. 120.

37 For the summary records of the discussion, see [1959] 1 Y.B. Int. L. Comm. 20-26, 40-52, 184-85. For the Commission’s report on the subject, see 2 id. 99-101. See also François, , La majorité requise pour l’adoption de décisions aux conférences diplomatiques intemationales, in Brüel, and others, (eds.), Internationale und Staatsrechtliche Abhandlungen: Festschrift Für Walter Schätzel 159-63 (1960)Google Scholar; Elias, , The Modern Law of Treaties 21-22 (1974)Google Scholar.

38 See, e.g., the statement by Mr. Liang, the Secretary of the Commission, [1959] 1 Y.B. Int. L. Comm. 21; the Report of the Commission, 2 id. 100.

39 M. Liang (1 id. 50) listed the following conferences: UN Maritime Conference, 1948; UN Conference on Freedom of Information, 1948; UN Conference on Road and Motor Transport, 1949; UN Conference on Declaration of Death of Missing Persons, 1950; Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, 1951; UN Conference on Status of Stateless Persons, 1954; International Conference on Conservation of Living Resources of the Sea, 1955; UN Conference on Maintenance Obligations, 1956; and UN Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, 1956.

40 Mr. Bartoš, 1 id. 21; Sir Gerald Fitzmaurice, id. 22; Mr. Tunkin, id. 25; Commission’s Report, 2 id. 100.

41 Mr. Liang, 1 id. 21; Mr. Yokota, id. 22.

42 Sir Gerald Fitzmaurice, id. 21; Mr. Yokota, id. 22; Mr. Pal, id. 24, 42; Mr. Tunkin, id. 42-43.

43 Mr. Tunkin, id. 25; Commission’s Report, 2 id. 100.

44 Sir Gerald Fitzmaurice, 1 id. 47; Commission’s Report, 2 id. 100.

45 Mr. François (1 id. 24): “The unanimity rule would be excessive, since it would enable one single State to frustrate the establishment of texts, which were the only means of advancing international legislation.”

46 Mr. Scelle, id. 22; Mr. Francois, id. 24.

47 Mr. Tunkin, id. 41; Sir Gerald Fitzmaurice, id. 47-48.

48 Commission’s Report, 2 id. 100.

49 Mr. Tunkin, 1 id. 25; Mr. Bartoš, id. 44; Commission’s Report, 2 id. 100.

50 Sir Gerald Fitzmaurice, 1 id. 48; Commission’s Report, 2 id. 100.

51 Ibid.

52 Mr. Ago, 1 id. 49-50; Mr. Liang, id. 51. The Commission decided by 8 votes to 6, with 1 abstention, not to include in the code any indication of a substantive voting rule. It decided, however, by 9 votes to 3, with 2 abstentions, to include in the code an indication of a voting rule for the adoption of the rules of procedure. Most members thought that this rule should be the simple majority rule and the Chairman declared that there was a consensus on the subject. While Mr. Tunkin stated that he did not agree with the majority view, he did not ask for a vote. Ibid.

53 Id. 184. For text, see 2 id. 98.

54 [1962] 2 Y.B. Int. L. Comm. 39.

55 Ibid.

57 Messrs. Bartoš and El-Erian. Id. 82.

58 Id. 199.

59 Messrs. Tsuruoka, Tunkin, and El-Erian. Id. 200-01.

60 Messrs. Ago, de Luna, Jiménez de Aréchaga, Briggs, and Sir Humphrey Waldock. Ibid.

61 Messrs, Tunkin, Yasseen, and Bartoš. Id. 202.

62 Id. 200.

63 Id. 201.

64 Id. 200.

65 Id. 201.

66 Ibid.

67 Id. 201-02.

68 Id. 202.

69 Ibid.

70 Ibid.

71 Id. 204, 245.

72 2 id. 166-67. The comment to the final text is almost identical. See [19661 2 Y.B. Int. L. Comm. 194-95.

73 UN Doc. A/CN.4/175, at 204 (1965). See also [1965] 2 Y.B. Int. L. Comm. 24.

74 Id. 25.

75 1 id. 44.

76 Id. 45.

77 Id. 46.

78 [1966] 2 Y.B. Int. L. Comm. 194.

79 UN GAOR, 22nd Sess., Annexes, Agenda Item 86, at 14 (1967).

80 UN Doc. A/CONF.39/6, at 11 (1968).

81 UN GAOR, 22nd Sess., Annexes, Agenda Item 86, at 7 (1967). For a summary of other comments, see UN Doc. A/CONF.39/5, Vol. I. at 106-10 (1968).

82 UN GAOR, 21st Sess., Annexes, Agenda Item 84, at 7 (1966).

83 Ibid. With respect to the approval of these views during the discussion in the Sixth Committee of the General Assembly in 1966, see id. 30.

84 UN Conference on the Law of Treaties, Off. Rec , 1st Sess., Summary Records of the Plenary Meetings and of the Meetings of the Comm. of the Whole, 1968, at xxviii-ix, 6 (1969).

85 Peru defined these conferences as those “at which the number of States participating is substantial.” UN Conference on the Law of Treaties, Off. Rec., Docs, of the Conf. (hereinafter Conf. Docs.), at 122 (1971).

86 Ibid. As Mr. Yasseen (Iraq) explained it, the proposed text “contained a rule which represented progressive development of international law and was based on international practice, which did not exist in the case of certain types of treaty or of conference; it was in fact followed only at major conferences and it would therefore be desirable to insert the word ‘general’ before the words ‘international conference.’ . . .” Summary Records, supra n. 84, at 82. See also the statement of Mr. Ruda (Argentina), ibid.

87 Conf. Docs., supra n. 85, at 122.

88 Summary Records, supra n. 84, at 81.

89 Ibid.

90 Id. 82.

91 Ibid.

92 Id. 83.

93 Id. 83, 185, 476; Conf. Docs., supra n. 85, at 123.

94 Id. 237-38.

95 UN Conference on the Law of Treaties, Off. Rec., 2nd Sess., Summary Records of the Plenary Meetings and of the Meetings of the Comm. of the Whole, 1969, at 217 (1970).

96 Id. 218.

97 Id. 219. Mr. Kearney (United States) fully agreed with the representative of Iraq that it was desirable to maintain the two-thirds rule. Ibid.

98 Id. 219-20.

99 Id. 252.

100 Ibid.

101 Id. 309.

102 Id. 17.

103 Ibid.

104 iId. 18.

105 Ibid. See also the statement by Mr. Matine-Daftary (Iran), id. 20.

106 Id. 18.

107 Ibid.

108 Ibid. See also the statement by Mr. Alvarez (Uruguay), id. 19-20.

109 Id. 19.

110 Id. 20.

111 Id. 22.

112 Id. 19, 22-23.

113 Id. 23.

114 Ibid.

115 Ibid.

116 Ibid.

117 The final text is cited above, at n. 35.

118 Summary Records, supra n. 95, at 206-07.

119 Sinclair, , The Vienna Convention on the Law of Treaties 14-15, 34 (1973)Google Scholar. See also De la, Guardia and Delpeck, , El Derecho de los Tratados Y La Convención de Viena de 1969, at 204 (1970)Google Scholar; Mosconi, , La Fohmazione dei Trattati 149, n. 61 (1968)Google Scholar.

120 In the advisory opinion concerning the voting procedure on questions relating to South-West Africa, the International Court of Justice refused to consider the voting system of the General Assembly as a part of the Assembly’s “procedure”; and Judge Basdevant noted in that case that in the Charter of the United Nations there are separate sections on voting (Articles 18 and 19) and on procedure (Articles 20-22). [1955] ICJ Rep. 75, 81.

121 See Knight, , Issues before the Third United Nations Conference on the Law of the Sea, 34 Louisiana L. Rev. 155, at 191 (1974)Google Scholar.

122 UN Doc. A/C.1/PV.1924, at 30-31 (1973). All citations for this debate are to the provisional edition of the procès-verbaux.

123 UN Doc. A/C.1/PV.1928, at 21-22 (1973).

124 UN Doc. A/C.1/PV.1930, at 19-20 (1973).

125 UN Doc. A/C.1/PV.1928, at 37 (1973).

126 Id. 41-42.

127 Id. 51.

128 Id. 52-53.

129 Id. 53-55.

130 UN Doc. A/C.l/PV. 1929, at 18-20 (1973). See also the statements by Messrs. Zegers (Chile), Beesley (Canada), and Boaten (Ghana), id., at 33-35, 52-53; UN Doc. A/C.1/PV.1932, at 8 (1973). That there is no agreement on the relationship of “consensus” to “unanimity” is evidenced by the statement of Mr. Mahmoud (Ethiopia) that the Conference should not tie itself “to the requirement of a consensus on every and all issues, especially if consensus is interpreted to mean unanimity.” Id. 28. On the other hand, Mr. Mettemich (Germany) expressed the view that “a consensus must not necessarily imply unanimity.” UN Doc. A/C.1/PV.1933, at 3 (1973).

131 UN Doc. A/C.1/PV.1929, at 63 (1973).

132 UN Doc. A/C.1/PV.1932, at 22-23.

133 Id. 33-35.

135 UN Doc. A/C.1/L.647, para. 10 (1973).

135 UN Doc. A/C.1/PV.1933, at 18-23 (1973). See also the statement by Mr. Zegers (Chile), id. 61-62.

136 Id. 41.

137 Id. 47-48.

138 UN Doc. A/C.1/PV.1936, at 11-13 (1973); UN Doc. A/C.1/PV.1937, at 11 (1973).

139 UN Doc. A/C.1/PV.1939, at 16-17 (1973).

140 UN Doc. A/C.1/PV.1937, at 11 (1973).

141 UN Doc. A/C.1/PV.1939, at 16-17 (1973).

142 Id. 41-42.

143 Id. 58.

144 Ibid.

145 Id. 7, 81. See also the Report of the First Committee, UN Doc. A/9278, at 5-6 (1973).

146 UN Doc. A/PV.2169, at 17-20 (1973).

147 GA Res. 3067, Nov. 16, 1973; 28 GAOR, Supp. 30 (UN Doc. A/9030), at 13-14.

148 UN Doc. A/CONF.62/2, at 15-16 (1973).

149 Id. 19.

150 Id. 20.

151 Id. 23.

152 Id. 2-3, 13, 15.

153 UN Doc. A/CONF.62/SR.6, at 3 (1973). Here and subsequently reference is to the provisional edition of the Summary Records of the Conference.

154 Id. 4. See also UN Doc. A/CONF.62/6 (1973), where paragraph 2 of the proposed Rule 39 (1) was revised to read: “In the event that a vote is taken, decisions of the Conference on matters of substance shall be taken by a nine-tenths majority of the representatives present and voting.” That document contained also other amendments emphasizing consensus.

155 UN Doc. A/CONF.62/SR.8, at 2-3 (1973).

156 Id. 4.

157 Id. 7. For a proposal for such a cooling-off period by three African and three Latin American delegations, see UN Doc. A/CONF.62/4 (1973). For an introductory statement by Mr. Warioba (Tanzania), see UN Doc. A/CONF.62/SR.9, at 2-3 (1973). “SUN Doc. A/CONF.62/7 (1973). It may be remembered that this was the original phraseology of the International Law Commission in its draft on the law of treaties. The United States revised its proposal later, in order to take into account the fact that several sessions of the Conference were to be held, by referring to majority or a two-thirds majority of the “States participating in that session of the Conference.” UN Doc. A/CONF.62/7/Rev.1 (1973).

159 UN Doc. A/CONF.62/SR.9, at 4 (1973).

160 Id. 7.

161 Id. 8.

162 Id. 11.

163 UN Doc. A/CONF.62/9, at 1 (1973).

164 Id. 2.

165 UN Doc. A/CONF.62/12 (1973).

166 UN Doc. A/CONF.62/SR.9, at 12 (1973).

167 Id. 12-16.

168 Id. 13. A similar view was presented by Mr. Zotiadis (Greece), id. 16.

169 Id. 14.

170 Id. 13. Similarly, Mr. Jagota (India) thought that “the rules of procedure were a procedural matter.” Id. 15.

171 A/CONF.62/SR.13, at 2 (1973).

172 Id. 3.

173 Ibid.

174 Id. 4.

175 Ibid.

176 Ibid.

177 Id. 5.

178 Ibid.

179 Ibid. Mr. Medjad (Algeria) recalled that “the Legal Counsel had endorsed the President’s view that the question of the adoption of the rules of procedure of the Conference was a purely procedural matter and should therefore be decided by a simple majority.” Id. 7.

180 Ibid.

181 Id. 9.

182 Id. 8.

183 One of the main compromise proposals read as follows:

  • 1.

    1. To facilitate the achievement of general agreement on questions of substance, the President of the Conference or the Chairman of a Main Committee as appropriate may, and shall if requested by at least 15 representatives, defer for a reasonable and specified period of time the taking of a vote on questions of a substance in that organ of the Conference. In no case shall such deferment exceed . . . days from the time of the postponement. The President or the Chairman as the case may be together with the General Committee, shall make every effort , during the period of deferment to facilitate the achievement of general agreement. If by the end of the specified period no agreement has been reached, the vote shall be taken at a subsequent meeting to be held within 2 days.

  • 2.

    2. If there is objection to proceeding to a vote, a decision to vote in the Plenary following a deferment under this rule shall require a two-thirds majority of the representatives present and voting. In the Main Committees such a decision shall require a simple majority of representatives present and voting.

Another proposal, similar to the preceding one, would have required for a decision to vote “a two-thirds majority of the representatives of States participating in the particular session of the Conference.”

In an attempt to breach the gap between proposals requiring a two-thirds majority of those present and voting and those demanding a two-thirds majority of the participating States, Spain suggested that the expression “representatives present and voting” be redefined to include not only those casting affirmative or negative votes but also those who abstain. UN Doc. A/CONF.62/10/Add.1 (1974).

184 UN Doc. A/CONF.62/SR.15, at 5-7 (1974).

185 UN Doc. A/CONF.62/WP.2 (1974).

186 UN Doc. A/CONF.62/SR.18, at 2 (1974). Mr. Ogundere (Nigeria) added that the purpose of the declaration was “to ensure that all representatives should feel that a consensus was essential to the work of the Conference, and also to ensure that justice was done to all delegations and to and by the international community.” Ibid. Mr. Valencia (Ecuador) stated that the proposed declaration was “more than guidance for the Conference, for it incorporated the gentleman’s agreement which had been adopted by the General Assembly,” and “would thus have an indisputable moral force.” Id. 6.

187 Id. 2-6.

188 The Secretary-General prepared a document showing in parallel columns a revised draft of the rules presented in December and amendments suggested by various delegations. UN Doc. A/CONF.62/L.1 (1974).

189 UN Doc. A/CONF.62/WP.1 (1974).

190 UN Doc. A/CONF.62/30/Rev.1 (1974), Rule 22. As far as the Main Committees were concerned, Rule 55(b) required the presence of representatives of a majority of the states participating in that session of the Conference “for any decision to be taken on any matter.” Rule 40 defined the term “States participating” in relation to any particular session of the Conference as meaning “any State whose representatives have registered with the Secretariat of the Conference as participating in that session and which has not subsequently notified the Secretariat of its withdrawal from that session or part of it.” For a discussion concerning this provision, see A/CONF.62/BUR/SR.2, at 2-11 (1974).

191 Rule 39(1), and with respect to decision relating to the exhaustion of negotiating efforts Rule 37(1). In the committees, however, only a majority of the representatives present and voting shall be required. Rule 55(c) and (d).

192 Rule 39(3) and (4). .

193 The relevant rule (Rule 37) speaks only of a “general agreement” and does not use the word “consensus,” as “it did not seem appropriate to use a term that defied definition.” Statement by the President of the Conference, UN Doc. A/CONF.62/ SR.16, at 7 (1974). On the other hand, Mr. Galindo Pohl (El Salvador) expressed preference for the term “consensus” rather than the vaguer term “general agreement.” He defined consensus as “an agreement to which there was no formal opposition even if some delegations made reservations or comments.” UN Doc. A/CONF.62/SR.17, at 2 (1974). The President then cited the definition adopted by the Economic and Social Council in connection with the World Population Conference, which defined “consensus” as “a general agreement obtained without a vote but without there necessarily being unanimity.” Id. 3. Concerning the consensus rule at the World Population Conference, see the summary of discussion in the report of the Population Commission, 56 UN ECOSOC, Supp. 3A (UN Doc. E/5462), at 18-19 (1974); and ECOSOC Res. 1835 (LVI), May 14, 1974, 56 UN ECOSOC, Supp. 1 (UN Doc. E/5544), at 1 (1974). See also UN Doc. A/CONF.62/SR.17, at 12 (1974).

194 UN Doc. A/CONF.62/SR.16, at 7 (1974).

195 In a Main Committee, this power may be exercised by the Chairman of the Committee, but the deferment shall not exceed five calendar days. Rule 55(d).

196 Statement by the President, UN Doc. A/CONF.62/SR.16, at 7 (1974).

197 As the President noted, the “General Committee had no authority since it was for the President to decide whether he would consult that or any other body.” Ibid. See also the discussion between the President and Mr. Warioba (Tanzania), UN Doc. A/CONF.62/SR.17, at 4-5 (1974).

198 It was noted by the President that Rule 37(2) applied only prior to efforts to determine whether an agreement could be reached. Once it has been determined that all efforts had been exhausted the only part of Rule 37 that still applied was paragraph 3 relating to a two-day notice. UN Doc. A/CONF.62/SR.18, at 11 (1974).

199 Rule 37(3) and 39(2).

200 UN Doc. A/CONF.62/SR.16, at 9 (1974).

201 Ibid. Two-thirds majority of the participants was also preferred by the Soviet Union, the Ukrainian Soviet Socialist Republic, Nepal, and Zambia. UN Doc. A/ CONF.62/SR.18, at 4, 6-7, 8, and 10 (1974). Afghanistan, Nepal, and Zambia, acting in the name of “the landlocked countries of the group of 77,” previously proposed that decisions of the Conference “on all matters of substance shall be taken by way of consensus and there shall be no voting on such matters until all efforts at consensus have been exhausted.” UN Doc. A/CONF.62/19 (1974).

202 UN Doc. A/CONF.62/WP.1/Add.1 (1974).

203 UN Doc. A/CONF.62/SR.17, at 8 (1974).

204 UN Doc. A/CONF.62/SR.18, at 6 (1974).

205 Id. 12.

206 Id. 12-13.

207 UN Docs. A/CONF.62/WP.3, WP.3/Add.1, WP.4 and WP.4/Add.1 (1974).

208 UN Docs. A/CONF.62/SR.19 and SR.20 (1974).

209 UN Doc. A/CONF.62/SR.20, at 18-20 (1974).

210 Statement by Mr. Stevenson (United States), July 11, 1974, 71 Dept. State Bull. 232 (1974).

211 Tammes, , Decisions of International Organs as a Source of International Law, 94 Recueil des Cours 261, at 287 (1958)Google Scholar.