University of Macerata Prof. Avv. Roberto Baratta, PhD International Institutions Law 12

Decision-making process Adopting legal instruments within IIs The classical method – unanimity. This is based on the classic notions of state sovereignty and equality of states : states cannot be bound against their will. Advantage: legal instruments possess the highest degree of legitimacy Drawback: the veto power any member enjoys, therewith leading to possible paralysis of the II Side effect: it invites recourse to informal instruments, non-binding recommendation, guide-lines and the like The unanimity rule usually applies. IIs are thus considered as intergovernmental organisations

Other forms of decision-making ii) Decisions adopted by consensus. A system based on non-objection. It means that all the parties do not object to the adoption of a decision Definition of the UN’s Office of Legal Affairs: “Consensus is generally understood to mean adoption of a decision without formal objections and vote; this being possible only when delegation formally objects to a consensus being recorded, though some delegations may have reservations to the substantive matter at issue or a part of it”. Consensus implies quite a long negotiations so that overall everyone is relatively satisfied with the text

… consensus - Little difference with unanimity: in both decision-making process, everyone enjoys a right of veto. Yet, unanimity requires a vote, unlike consensus. Moreover, consensus implies a negotiation where an adjustment of all the different needs may be settled - drawback: consensus quite often waters down the final content of the law instrument to be adopted. For instance, when it comes to the codification of customary international law, it appeared that the resulting instrument did not reflect the well-settled customary rules, their content being rather weakened instead. The illustration of the problem in the Third Conference on the Law of the Sea.

Qualified majority Sometimes where consensus is chosen, it is accompanied to QMV (qualified majority voting) – e.g. WTO agreement provides that in both its plenary and executive organs (the Ministerial Conference and the General Council) decisions will be taken by consensus or, failing it, by majority. It may be simple majority or more than that (two-thirds or three- quarters) Voting in the UNSC: on substantive issues, UN Charter requires the affirmative vote of nine members (out of 15), including the 5 permanent members (Article 27.3). The practice has somehow simplified it, since it suffices that the 5 permanent members do not object, to carry out a proposal. The endorsement of this practice by the ICJ in 1971 Namibia Opinion (para. 22). The ICJ came close to accepting this practice as customary law. Yet the ICJ did not investigate as to the opinio juris (it would have been hard to find it)

Examples of weighted voting Under the UNSC system, the 5 permanent members carry more weight than the votes of others. Though MS are supposed to be equal (Article 2.1 Charter), actually they are not.  the practice of ‘pre-cooking’ of decisions in smaller groups, i.e. decisions are in fact prepared by the 5 permanent members (P-5) In the IFM, the number of the votes of each MS is dependent on the contribution of each MS to the IMF, and the stability of its currency: if a M has to borrow money heavily, it may loose some of its votes. Voting in the EU Council. It is an elaborated form of weighted voting. As from 1 November 2014, a QM is defined as at least 55% of the SM, comprising at least 15 of them and representing MS comprising at least 65% of the population of the Union  it is a form of double majority