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Ch.IV The General Assembly, Procedure, Article 21

Thomas Fitschen

From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition)

Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor)

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 08 June 2023

UN Charter

(p. 688) Article 21

The General Assembly shall adopt its own rules of procedure. It shall elect its President for each session.

  1. A.  The Rules of Procedure 1–91

    1. I.  Legal Framework 1–7

    2. II.  Key Features of the Rules of Procedure as Applied in Practice 8–91

      1. 1.  Sessions 8–16

        1. (a)  Regular Sessions 9–13

        2. (b)  Special Sessions 14

        3. (c)  Emergency Special Sessions 15–16

      2. 2.  Participants 17–25

      3. 3.  The Secretariat 26–27

      4. 4.  The Committees 28–44

        1. (a)  Main Committees 29–32

        2. (b)  General Committee 33–36

        3. (c)  Credentials Committee 37–39

        4. (d)  Other Standing Committees 40

        5. (e)  Other Committees 41–44

      5. 5.  Conduct of Business 45–61

        1. (a)  Setting up the Agenda 45–50

        2. (b)  Debate 51–61

      6. 6.  Decision-making 62–89

        1. (a)  Resolutions and Decisions 63–67

        2. (b)  Majority Required 68–70

        3. (c)  Quorum 71–72

        4. (d)  Amendments 73

        5. (e)  Methods of Voting 74–84

        6. (f)  Motion to Take No Action 85

        7. (g)  Absence and Non-Participation 86–87

        8. (h)  Explanation of Votes 88

        9. (i)  Elections 89

      7. 7.  Documentation 90–91

  2. B.  The President of the General Assembly 92–106

    1. I.  Election 92–96

    2. II.  Functions 97–104

      1. 1.  Conduct of Business 99–101

      2. 2.  Composition of Committees 102

      3. (p. 689) 3.  Representation 103

      4. 4.  The Changing Role of the PGA 104

    3. III.  Vice-Presidents 105–106

UN Materials

Report of the Preparatory Commission of the United Nations, PC/20, Chapter I, s 3.

Report of the Committee on Procedures and Organization, GAOR (II), ii, Annexes, Doc A/388.

Draft Rules of Procedure by the Committee on Procedures and Organization, ibid (Doc A/388, pt III).

Select Bibliography

  • Baehr P and Gordenker L, The United Nations: Reality and Ideal (Praeger 1984).
  • Bailey S, The General Assembly of the United Nations. A Study of Procedure and Practice (Praeger 1964).
  • Chrispeels E, ‘Procedures of Multilateral Conference Diplomacy’ in MA Boisard and EM Chossudovsky (eds), Multilateral Diplomacy/La Diplomatie Multilaterale: The United Nations System at Geneva/Le Système des Nations Unies à Genève: A Working Guide/Guide de Travail (2nd edn, Nijhoff 1998) 119.
  • Kaufmann J, United Nations Decision Making (Sijthoff & Noordhoff 1980).
  • ——— Conference Diplomacy: An Introductory Analysis (2nd edn, Nijhoff 1988).
  • ——— ‘Some Practical Aspects of United Nations Decision-Making, Tactics and Interaction between Delegates’ in MA Boisard and EM Chossudovsky (eds), Multilateral Diplomacy/La Diplomatie Multilaterale: The United Nations System at Geneva/Le Système des Nations Unies à Genève: A Working Guide/Guide de Travail (2nd edn, Nijhoff 1998) 231.
  • Lee RS, ‘Multilateral Treaty-Making and Negotiation Techniques: An Appraisal’ in Bin Cheng and ED Brown (eds), Contemporary Problems of International Law: Essays in Honour of Georg Schwarzenberger (Stevens 1988) 157.
  • Marin-Bosch M, Votes in the UN General Assembly (Kluwer 1998).
  • McWhinney E, United Nations Law Making: Cultural and Ideological Relativism and International Law Making for an Era of Transition (Holmes & Meier 1984).
  • Much C, ‘Revitalisierung der UN-Generalversammlung—die unendliche Geschichte’ in J Varwick and A Zimmermann (eds), Die Reform der Vereinten Nationen—Bilanz und Perspektiven (Duncker & Humblot 2006) 85.
  • Permanent Mission of Switzerland to the UN (ed), The PGA Handbook. A practical guide to the United Nations General Assembly (Permanent Mission of Switzerland to the United Nations 2011).
  • Peterson MJ, The UN General Assembly (Routledge 2006) 41–89.
  • ——— ‘General Assembly’ in TG Weiss and S Daws (eds), The Oxford Handbook on the United Nations (Oxford University Press 2007) 97.
  • Sloan B, United Nations General Assembly Resolutions in our Changing World (Transnational Publishers 1991).
  • Smith CB, Politics and Process at the United Nations: The Global Dance (Lynne Rienner 2006).
  • Sobel R, Procedure at International Conferences. A Study of the Rules of Procedure at the UN and at Inter-Governmental Conferences (2nd edn, CUP 2006).
  • Suy E, ‘Rôle et signification du consensus dans le processus législatif des Nations Unies’ in MA Boisard and EM Chossudovsky (eds), Multilateral Diplomacy/La Diplomatie Multilaterale: The United Nations System at Geneva/Le Système des Nations Unies à Genève: A Working Guide/Guide de Travail (2nd edn, Nijhoff 1998) 205.(p. 690)
  • Walker RA, Manual for UN Delegates: Conference Process, Procedure and Negotiation (United Nations Institute for Training and Research 2011).
  • Wolfrum R and Pichon J, ‘Consensus’ in MPEPIL (online edn).
  • Zemanek K, ‘Majority Rule and Consensus Technique in Law-Making Diplomacy’ in RSJ Macdonald and DM Johnston (eds), The Structure and Process of International Law (Nijhoff 1983) 857.

A.  The Rules of Procedure

I.  Legal Framework

The General Assembly is the ‘chief deliberative, policy-making, and representative organ of the United Nations’ (World Summit Outcome, UNGA Res 60/1 (16 September 2005) para 149). Whereas the Charter describes the competences of the GA in detail, questions of procedure are covered only by a few basic provisions (see Arts 1820, 22). In Art. 21, first sentence, the Charter has left it to the GA to adopt its own rules of procedure as it deems necessary for the conduct of its business. The GA adopted its first set of provisional Rules of Procedure1 at its very first session in 1946, based on a draft contained in the report of the Preparatory Commission.2 Upon the recommendation of a Special Committee created for this purpose, the GA then adopted, at its second session, its Rules of Procedure,3 which already contained all the essential procedural provisions that are still valid today.4 They entered into force on 1 January 1948.

The rules valid at present5 regulate the procedures of all organs and other bodies of the GA: eighteen Chapters and 163 Rules plus eight Annexes based on decisions of the GA contain the principles and specific guidelines for the conduct of work of the GA, covering, inter alia, the different types of session, the preparation of the agenda, composition and credentials of delegations, the role of the president and vice-presidents, the General Committee, the Secretariat, languages, records, Plenary meetings, committees, admission of new members to the UN, elections, and administrative and budgetary questions.

By laying down the ground rules for the GA’s parliamentary-style diplomacy, the provisions contained in the Rules supplement the GA-related provisions of the Charter, and a number of them indeed correspond directly to, or even reproduce textually, Articles of the Charter (Rules 49, 82, 83, 85, 144, 146, 161). They have legal character inasmuch as they bind the members participating in the proceedings of the GA, but without having the same normative effects as the Charter provisions to which they relate. Although they do not apply anywhere outside the GA, they can have important indirect effects in regulating diplomacy among States within the GA. Delegations can utilize them as a political instrument to determine the direction or speed of the deliberations of GA organs on important substantive issues, or even to prevent debate or action concerning a matter altogether. To the extent that the GA’s resolutions and decisions can have (p. 691) normative effects,6 ‘playing by the rules’ in the process of their negotiation and adoption may have important legal repercussions even outside the UN.

A few rules, while initially operative only within the Organization, may even have important political implications for States beyond the confines of the GA itself. The decisions on accreditation or refusal of accreditation, for example, which are not covered by the Charter itself, can have important external effects. Likewise, decisions on admission of new members (Rules 134–138) as well as elections to certain posts or bodies may be important for determining a State’s political and general legal status in the international community.7

As the Rules contribute to determining the rights and duties of states within the UN and regulate much of the diplomatic intercourse between the sovereign member States in the GA, they have been called a ‘Mini Charter’.8 But unlike the Charter the rules of procedure are much more a living text and a practical tool for organizing the daily workings of the GA. They are much easier to amend—or even to circumvent or disregard altogether—than the Charter. In fact, and this is important to understand, the GA is almost entirely free to conduct its business differently from what the rules prescribe—if it so decides.

It is in the nature of conference diplomacy that not all procedural issues can be dealt with in advance. A great number of procedural methods that are being followed today have developed over the years in the practical work of the organs of the GA according to their day-to-day requirements. Four types of ‘changes’ can be distinguished. The first and most formal one is a proper amendment of the Rules, which has happened several times since 1946.9 Most of the formal amendments were simply due to the UN`s growing membership which necessitated several changes in the number of vice-presidents and of the members of certain committees as well as adaptations of other provisions. In other cases, practice revealed that rules were implemented insufficiently or disregarded altogether, prompting the GA over the years to set up a number of special bodies for the purpose of reviewing its procedures and organization.10 While some of their recommendations on the conduct of the GA’s business led to direct amendments of the Rules, the bulk of their views found their way into Annexes to the Rules.11 In addition, the GA passed a number of resolutions on the strengthening of the Organization which were (p. 692) to guide the conduct of business without formally becoming part of the Rules.12 Still another group of ‘amendments’ are those cases where the repeated application of new procedural methods created precedents which later became generally accepted practice without any formal decision by the GA.

Looking at the stream of resolutions on the rationalization of the proceedings and on the ‘revitalization’ of the GA, one could come to the conclusion that the GA finds itself in a state of permanent overhaul.13 But the work carried out in the GA’s very own Ad hoc Working Group on the Revitalization of the General Assembly that has been active for the past few years and has prepared numerous resolutions on this topic has yielded little progress as far as the Rules are concerned. Most proposals to make the work of the GA more effective and politically relevant have been around for quite some time,14 and it would be up to member States to apply the insights and recommendations that they themselves have formulated. The GA is of course aware that this is at the core of the problem when it repeatedly stresses, somewhat helplessly, ‘the importance of implementing resolutions on the revitalization of its work’ and expresses its concern as to ‘their lack of implementation and impact on the authority, effectiveness and efficiency of the Assembly’.15

II.  Key Features of the Rules of Procedure as Applied in Practice

1.  Sessions

The GA can meet in regular, special, or emergency special sessions (see Eick on Art. 20).

(a)  Regular Sessions

The GA meets every year in a regular session commencing on the Tuesday following the second Monday in September (Rule 1 as amended by UNGA Res 55/14 (3 November 2000)); the closing date is fixed at the beginning of each session upon recommendation of the General Committee (Rule 2, usually the last Monday before the start of a new session, whereas the regular meeting period normally ends before Christmas of each year). In accordance with established practice the seating arrangement is being reshuffled for each session by drawing lots to choose the delegation that shall occupy the first desk on the GA floor, followed by all other delegations according (p. 693) to English alphabetical order. All technical arrangements for the organization of the session as well as numerous recommendations on the conduct of business, including those that supplement the rules of procedure or recall earlier decisions relative to the proceedings, are laid out by the Secretary-General in a report to the General Committee (‘Organization of the xth regular session of the General Assembly, adoption of the agenda and allocation of items’, UNGA Doc A/BUR/session/1), which the latter adopts and forwards to the GA for approval.

10  The session begins with a general debate which normally opens on the Tuesday following the opening of the session and shall be held without interruption over a period of nine working days.16 Following a 2004 recommendation by the General Assembly,17 the Presidents of the GA have tried to give some guidance for the general debate by suggesting an issue or issues of global concern to be addressed during the general debate,18 but that has had little impact on the structuring or content of the debate. The general debate is then followed by meetings of the Main Committees and the Plenary ‘by item’ according to the agenda.

11  Its designation as the ‘Millennium Assembly of the GA’ notwithstanding, the 55th session of the GA 2000/2001 was a regular session like any of its predecessors. In political terms, however, it was a special event as it presented, in the words of the GA, a ‘unique and symbolically compelling moment to articulate an animating vision for the UN in a new era’ (UNGA Res 53/202 (17 December 1998)). Its general debate was preceded by the so-called ‘Millennium Summit’ from 6–8 September 2000, attended by Heads of State and Government. Technically, however, the Summit is considered ‘an integral part of the Millennium Assembly’ (UNGA Res 53/202, para 2), and its ‘Millennium Declaration’ is a GA resolution (UNGA Res 55/2 (8 September 2000)).

12  Since the Millennium Summit, holding special events at the highest level immediately before the general debate has become a standing feature of the opening weeks of the GA, the idea being to make use of the presence of so many high-level representatives for particular one-off debates that can emphasize certain political issues and provide important political input for debates elsewhere. These events often comprise not only debates in the classical sense, but also workshops or roundtable discussions, and sometimes result in a summary of the discussions provided by the President, or even a negotiated outcome document adopted by the participants. The 65th session saw no fewer than three high-level events (the High-level Plenary Meeting as a contribution to the International Year of Biodiversity, the High-level Plenary Meeting to review and assess progress made in addressing vulnerabilities of Small Island Developing States, and the High-level Plenary Meeting on the Follow-up to the Outcome of the Millennium Summit) squeezed into the week before the general debate, pushing back the beginning of the latter for two days and even requiring meetings on Saturday. The 66th session’s general debate was again preceded by three High-level Meetings (on Desertification, on Non-Communicable Diseases, and to commemorate the tenth anniversary of the adoption of the Durban Declaration and Program of Action).

(p. 694) 13  As much as the political focus on single issues is welcome, it is beginning to dawn upon the GA that too many of them immediately before the general debate may affect the latter’s value by diverting some of the attention of the international public. In its UNGA Res 65/315 on the revitalization of the General Assembly, the GA noted ‘with appreciation that the high level meetings… give more visibility to very important topics’, but also underlined the ‘need… to preserve the integrity of the general debate in September’ and called for an enhancement of ‘the coordination of the scheduling of high level meetings with a view to optimizing the number and distribution’ of such events.19

(b)  Special Sessions

14  Special sessions are convened, as the occasion may require, at the request of the SC or of a majority of the member States (see Art. 20); their convocation takes place within fifteen days of the receipt of such a request (Rule 8a). Furthermore, any member of the UN is entitled to request the SG to convene a special session (for further details see Rules 8–9). In recent years the GA has often used the format of special sessions to address current social or developmental issues in a concise manner at a high level (eg special sessions on drugs 1998 and HIV/AIDS in 2001) and to undertake a five-year-term review of many of the world conferences that were held between 1990 and 1996 without having to convene another world conference for that purpose. The GA has fixed the dates for these ersatz world conferences with their extensive preparatory processes sometimes years in advance, including meetings of special Preparatory Committees as for the Conferences themselves.

(c)  Emergency Special Sessions

15  An emergency special session20 can be convened outside a regular session of the GA within twenty-four hours after the receipt of a request in case of a threat to the peace, a breach of the peace or an act of aggression, and a genuine paralysis of the SC due to the use of the veto (Rule 8). It can be convened upon request by the SC (procedural vote without the possibility of veto), by a majority of the members of the UN, or by any member of the UN, provided a majority of UN members concur in the request (Rule 9 (b)). The opening is notified to all UN members by the SG at least twelve hours in advance (Rule 10, second sentence). Emergency special sessions meet in Plenary only (Rule 63). Other specific provisions concern the provisional agenda (Rule 16, third sentence) and the introduction of additional items on the agenda by two-thirds majority (Rule 19, second sentence). Apart from that, the normal Rules apply.

16  To avoid recurring debates on whether the conditions for convening an emergency special session in reaction to developments in the Middle East are being met, the Tenth Emergency Special Session held on 24 April 1997, was never formally closed. It can be reconvened by the President at short notice, as has repeatedly been done since then.

2.  Participants

17  Sessions of the GA are attended by members (ie member States of the Organization) and observers. The question of membership, ie whether or not a State may participate in the work of the Organization, has to be distinguished from the question of who, ie which government, is entitled to represent a member State (see also Magiera on Art. 9 MN 7–16).

(p. 695) 18  The legal status of non-members of the UN is not regulated by the Charter, nor do the Rules of Procedure contain provisions on the participation of non-members in the work of the GA. The rights and duties flowing from an invitation to participate in the work of the GA in the capacity of observer, which over time has been extended to a number of non-member States (most of which later became full members of the UN), to other entities such as national liberation movements, and to international organizations, is a matter of practice only and lacks general legal foundation. Some of the specific conditions of an observer’s participation can be found in the respective resolution whereby the GA invites the entity, and occasionally subsequent decisions (for questions relating to different forms of observer status, to functions of observers and their legal base, see Magiera on Art. 9 MN 6).

19  The former Trust Territory of South West Africa, which later became the independent State of Namibia, was a particular case in terms of the Rules of Procedure. As early as 1954 the GA adopted six ‘special rules’ of procedure for the exercise of the rights and petitions relating to the Trust Territory of South West Africa (UNGA Res 844 (IX) (11 October 1954)) which were annexed to the Rules (see UN Doc A/520/Rev.15, Annex III). After the GA had determined that the mandate of South Africa for Namibia was terminated and had taken ‘direct responsibility’ for that territory until its independence, the UN Council for Namibia was created by UNGA Res 2248 (S-V) as the ‘legal administrative authority for Namibia’ on 19 May 1967. The Council then represented Namibia in international organizations, at conferences, and vis-à-vis third countries. It was granted observer status by the GA and its subsidiary bodies as well as by the majority of UN specialized agencies. In addition, the South West Africa People’s Organization (SWAPO) received observer status as a national liberation movement (UNGA Res 31/152 (20 December 1976)). After Namibia’s independence in 1989 and membership in the UN as of 23 April 1990, the Council, having fulfilled its mandate, was formally dissolved on 9 October 1990, and Annex III of the Rules was declared no longer applicable in an amendment to the Rules dated 21 August 1991 and was deleted from subsequent editions of the Rules.

20  At the 29th session, the GA invited the PLO, the ‘representatives of the Palestine people’, to participate in GA Plenary sessions on the question of Palestine (UNGA Res 3210 (XXIX) was adopted on 14 October 1974 by 105 votes to four, with twenty abstentions). The PLO was furthermore invited to participate as an observer at sessions and conferences under the auspices of the UN (UNGA Res 3237 (XXIX) (22 November 1974); also UNGA Res 33/28 (7 December 1978) and 33/147 (20 December 1978)). The GA conferred additional procedural rights on the PLO in UNGA Res 52/250 (7 July 1998). Since the 43rd session the observer representing the PLO has used the designation ‘Palestine’ (UNGA Res 43/160 (9 December 1988)).

21  The specialized agencies of the UN such as the FAO, WHO, UNESCO, or ILO enjoy observer status based on the agreements which they have concluded with the UN Organization. They are given an opportunity to participate (without a right to vote) in the deliberations of the Committees of the GA if the questions to be discussed touch upon their respective competences. In specific cases, the administrative heads of specialized agencies have delivered statements before the Plenary of the GA.21

22  Representatives of other international organizations or regional institutions have also been invited to participate since the third session of the GA (for details see Fastenrath on Art. 4 MN 49–50). In 1994 the GA decided that the granting of observer status should (p. 696) be ‘confined… to those intergovernmental organizations whose activities cover matters of interest to the Assembly’ (UNGA Dec 49/426 (9 December 1994)).

23  Formal observer status has also been granted to certain non-State organizations which have a separate status in international law, such as the International Committee of the Red Cross (UNGA Res 45/6 (16 October 1990)), the Sovereign Military Order of Malta (UNGA Res 48/265 (24 August 1994)), and the World Federation of Red Cross and Red Crescent Societies (UNGA Res 49/2 (19 October 1994)) in view of their special role and functions in international humanitarian relations.

24  As to the participation of NGOs in the work of the UN,22 Art. 71 of the Charter only provides that ECOSOC may make ‘suitable arrangements for consultations with NGOs’. For the GA, however, no such Charter provision exists, and accordingly the Rules are silent on how NGOs might participate in the work of the GA.23 But despite the absence of any formal guiding rules on this matter, practice has evolved early on to allow a certain degree of informal participation by NGOs in the work of some main committees and several of its subsidiary bodies. Representatives of NGOs, such as the Jewish Agency for Palestine and the Arab Higher Committee, were given the right to speak on questions of direct interest to them already in the early days of the UN. They were granted the right to make statements and to answer questions.24 NGO representatives from the Trust Territories have participated, for example, in the work of the Special Political and Decolonization Committee and its predecessor, the Trusteeship Committee (Fourth Committee), in their capacity as petitioners. In all such instances NGOs had expressly requested permission to petition the Committee on an issue of concern to them, and it was in that capacity that the Committee allowed them to speak and participate in its work. In a similar manner, NGOs have participated in the work of the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples. Ad hoc bodies of the GA have also allowed NGOs to follow its formal meetings and to address the respective body, upon the request and at the discretion of the chairperson.

25  NGOs have also played an important role in recent special sessions and at High-level Meetings of the General Assembly. In view of the tremendous influence which NGO representatives had had on the 1992 UN Conference on Environment and Development in Rio de Janeiro, the GA decided to invite the ‘major groups as identified in Agenda 21 (p. 697) and represented by non-governmental organizations’ also to participate ‘in the debate on an overall review and appraisal of the implementation of Agenda 21’ at the 19th special session in 1997. The GA added, however, that the arrangements concerning the participation of NGOs ‘will in no way create a precedent for other special sessions of the Assembly’ (UNGA Dec 51/467 (18 April 1997)). A similar practice, with differences in details according to the respective decisions of the GA on the modalities, has been followed for all subsequent Special Sessions devoted to the follow-up of other World Conferences held in the 1990s and, in recent years, for High-level Plenary Meetings.

3.  The Secretariat

26  Under Rule 45, the SG or any of his staff so designated (for details cf Chesterman on Art. 98 MN 2–6) shall act as the Secretariat of the GA in all its meetings, its committees, and sub-committees. The SG is responsible for the preparation and organization of regular and special sessions of the GA. He has to draft and circulate the agenda (Rule 12), process and circulate all documents (Rule 47), and ‘generally, perform all other work which the Assembly may require’ (Rule 47).

27  The SG must make an annual report to the GA on the work of the Organization; that report shall be communicated to members of the UN at least forty-five days before the opening of the session (Rule 48). In addition, the SG has to prepare ‘such supplementary reports as may be required’. Over the years the number of supplementary, special reports requested by the various GA organs has increased enormously. The Group of High-level Experts recommended that ‘resolutions should request reports only in cases where that would be indispensable for facilitating the implementation’ of the resolution. The GA, drawing on this recommendation, encouraged member States ‘to exercise restraint in making proposals requesting new reports …, bearing in mind the desirability of reducing the number of such reports’ (UNGA Res 48/264 (29 July 1994) para 5; UNGA Res 50/206 C (23 December 1995) paras 6–8). The SG has also time and again criticized this inflationary development and has asked the GA to show some self-restraint, but to little avail.

4.  The Committees

28  According to Art. 22 of the Charter the GA may establish such subsidiary organs as it deems necessary for the performance of its functions. The Rules foresee the so-called Main Committees (Part XIII of the Rules), two procedural committees (the General Committee, Part VI, and the Credentials Committee, Part IV), and two standing committees (the Committee on Contributions and the Advisory Committee on Administrative and Budgetary Questions, Part XVI of the Rules). For other subsidiary and ad hoc bodies established by the GA under Rule 161 see Khan on Art. 22.

(a)  Main Committees

29  At present the GA has six main committees25 (formerly seven; Rule 98 was amended by UNGA Res 47/233 in order to merge the Special Political and the Trusteeship (p. 698) Committees; the Fourth Committee is now the ‘Special Political and Decolonization Committee’) whose responsibilities largely correspond to the major fields of activities of the UN. They operate as ‘committees of the whole’, meaning that their membership comprises all member States (for representation of member States in these committees see Rules 100 and 101).

30  All agenda items are allocated to a main committee before being considered in Plenary unless the GA explicitly decides to consider the item immediately in a Plenary meeting (Rule 65) due to their political importance or their cross-cutting character. Agenda items are normally assigned to one main committee only. In 2007, however, the GA allocated the item ‘administration of justice’ to both the Fifth and the Sixth Committees, the latter having to examine the legal issues of the overhaul of the UN’s internal justice system, whereas the former was to decide on the budgetary and administrative issues involved.

31  Each main committee elects, on the basis of equitable geographical representation, a chairperson, three vice-chairpersons,26 and a rapporteur, so that each regional group has one post in the bureau. Each regional group provides one chairperson, with the sixth chairmanship rotating following a fixed pattern that stretches over a period of twenty sessions.27 The chairperson, the vice-chairpersons, and the rapporteur form the bureau of the committee and as such guide the organization of work, the conduct of debates, the drafting and timing of proposals, and the content of the final reports. During the sessions, they are often entrusted with conducting formal or informal negotiations or consultations aimed at the solution of concrete, controversial issues (see Rules, Annex VI, para 21). With these tasks the chairpersons of the main committees often have a greater influence on concrete decisions of their body than, for instance, the vice-presidents in the Plenary.

32  Under Rule 102 the committees may set up sub-committees, which shall elect their own officers.

(b)  General Committee

33  The GC has twenty-seven members. It is chaired by the President of the GA and comprises the twenty-one Vice-Presidents of the GA and the chairpersons of the six main committees. No two members of the GC may be representatives of the same delegation (Rule 38, as amended by UNGA Res 1990 (XVIII) (17 December 1963)). A member that has requested the inclusion of an item but is not represented in the GC is entitled to attend any meeting at which the discussion of that item is scheduled (Rule 43).

34  In accordance with Rules 40 and 41, the GC shall, at the beginning of each session, consider the provisional agenda, together with the supplementary list; make recommendations to the GA with regard to each item proposed, concerning its inclusion in the agenda, examine requests for the inclusion of additional items in the agenda, and make recommendations thereon to the GA; make recommendations to the GA concerning the (p. 699) closing date of the session; and make proposals on the allocation of items to the Plenary or to one of the main committees.

35  As the General Committee makes only recommendations, the final decision whether or not to include an item in its own agenda is taken by the GA. The GA examines the report of the General Committee in its first session, and unless a member State challenges the recommendation and requests otherwise, would normally follow the proposals by the GC. In preparing its recommendations the GC should take care not to decide upon any political question nor discuss the substance of an item, except insofar as this bears upon the question of whether to include the item on the agenda or not. This, of course, may be of tremendous political importance, as can be seen in the case of the repeated decision by the GC to reject a request to include items concerning Taiwan on the proposed agenda.28 The GC’s recommendation to refer the consideration of an item to a main committee has also been challenged in Plenary on several occasions. A proposal to have an item considered directly in Plenary is regarded as having been rejected if the Plenary endorses the original recommendation by the GC.29

36  In addition to its responsibilities concerning the agenda, the GC assists the President of the GA in drawing up the agenda for each Plenary meeting, in determining the priority of items, and in coordinating the proceedings of all committees of the GA; and in general assists the President in his general conduct of the work of the GA. The GC also meets periodically throughout each session to review and make recommendations concerning progress. It may also meet at such other times as the President deems necessary or upon the request of any of its members (Rule 42). This function of regularly reviewing the work programme of the GA with the aim of rationalization has gained increasing importance since the debate on reforming the procedures of the UN, which started at the 40th session. So far, the GC has not been very successful at fulfilling its rationalization tasks in practice.30

(c)  Credentials Committee

37  The Credentials Committee consists of nine members who are appointed by the GA (Rule 28), traditionally at the first Plenary meeting, on the proposal of the President of the GA. The Committee elects a chairman, but no vice-chairman or rapporteur. Its task is to examine the letters of credentials submitted by delegations and to report to the GA.31 Under Arts 19 (2) and Rule 25, delegations of members may consist of up to five representatives and alternate representatives and an unlimited number of advisers, technical advisers, experts, and persons of similar status as may be required. The Representatives have to submit a certification of their status, the ‘letter of credentials’, addressed to the SG (p. 700) and signed by their Head of State or Government or minister for foreign affairs, preferably one week before the opening of the session (Rule 27). Unlike the list of delegations requested by the SG at the beginning of each session and comprising all categories of delegates at that point in time, the letter of credentials is a legal document spelling out the names of States’ representatives throughout the session of the GA.32

38  The tasks of this Committee are merely technical in nature. It has no authority to cast a political judgment on any government issuing a letter of credentials. Upon completion of its work, the Committee submits a report to the GA. Notwithstanding this fact, the credentials of a number of member States have been challenged in the Credentials Committee on political grounds (for a full account see Magiera on Art. 9 MN 25–38).33

39  The first and second special sessions of the GA appointed credentials committees of their own, but since the third special session the regular session’s credentials committee also serves at a special session. The same applies to emergency special sessions.

(d)  Other Standing Committees

40  The Advisory Committee on Administrative and Budgetary Questions (ACABQ, Rules 155–157) consists of sixteen members, including three financial experts of recognized standing (Rule 154). It is responsible for expert examination of the programme budget of the UN and assists the Fifth Committee (Rule 157). The Committee on Contributions is an eighteen-member expert committee. Its function is to advise the GA on the apportionment of the expenses of the Organization under Art. 17, para 2 of the Charter (Rule 160).

(e)  Other Committees

41  In addition to the standing committees, the GA may establish such committees as it deems necessary for the performance of its functions (ad hoc committee). The rules guiding the conduct of business in committees are to a very large extent identical, or (p. 701) at least similar, to those relating to Plenary meetings. Special provisions are contained in Rules 99–133. Unlike in Plenary meetings, the necessary quorum for the consideration of an item only requires the presence of one-quarter of the committee members. Decisions can only be taken, however, if the majority of the committee members are present (Rule 108).

42  Member States that are not members of a particular committee but have a special interest in an item may be invited to participate in its work, without a right to vote (see Rules, Annex V, para 112). In practice, the special interest is not being examined, and non-members submitting a request have regularly been invited to participate as observers.

43  Since 1974, the practice of creating ad hoc committees has also been established for special sessions of the GA. For a number of special sessions, so-called ‘ad hoc committees of the whole’ were created; others have set up certain thematic committees.

44  Other subsidiary bodies established by the GA work under the rules that apply to the committees (Rule 161). The SG acts as their secretary (Rule 45). The meetings are held in public unless the respective body decides otherwise (Rule 60).

5.  Conduct of Business

(a)  Setting up the Agenda

45  Under Rule 12, a provisional agenda of the next session must be communicated to members of the UN at least sixty days before the opening of a session. But since that is only two months before the next session and does not leave sufficient time for preparations, the Special Committee on the Procedure and Organization of the GA decided in 1971 to have the SG draw up a ‘Preliminary List of Items to be Included in the Provisional Agenda’ (always UN Doc A/session/50) within the first three months of each year, and, if needed, a revised list in April (UN Doc A/session/50/Rev.1). The preliminary list gets further developed into the ‘Annotated Preliminary List of Items to be Included in the Provisional Agenda’ (UN Doc A/session/100). This document is particularly useful for delegates and observers alike, as the ‘annotations’ contain information on the reports to be expected and concise background information on the history of each subject and the previous resolutions.

46  Under Rule 12, the Provisional Agenda of the next regular session (UN Doc A/session/150) then appears in mid-year. It must include the reports from the principal organs of the UN, all items the inclusion of which has been ordered by the GA at previous sessions, all items proposed by another principal organ of the UN, all items proposed by member States, all items pertaining to the budget for the next financial year and reports pertaining to the previous year, all items which the SG deems necessary to put before the GA, and finally, all items proposed by States not members of the UN under Art. 35 (2) of the Charter (Rule 13).

47  Any member or any principal organ of the GA or the SG may request, until thirty days before the opening of the session, the inclusion of supplementary items in the agenda. Under Rule 14, such items will be placed on the Supplementary List of Items (UN Doc A/session/200), which must be communicated to members at least twenty days before the opening.

48  The final proposal on the agenda and the allocation of items to a committee or the Plenary is then made by the General Committee. The GC submits its report to the Plenary for approval (Organization of the xth Regular Session of the General Assembly, (p. 702) Adoption of the Agenda and Allocation of Items, UN Doc A/session/250) as soon as possible after the opening of the session (Rule 21). After the GA has decided on the agenda, the final Agenda of the xth Session of the General Assembly is published as UN Doc A/session/251; the Allocation of Agenda Items to the committees can be found in document A/session/252.

49  The inclusion of additional items ‘of an important and urgent character’ (Rule 15) can be requested even after the deadline and during session if the GA so decides. Consideration of such an item shall not take place before seven days have elapsed since it was placed on the agenda and a committee has reported on it, unless the GA decides otherwise. In practice the GA has been fairly generous and accepted additional items throughout the year without too much attention to their urgency and importance.

50  The Rules do not provide specific criteria for selecting the items to be put on the agenda. In the context of the debate on UN reform initiated at the 40th session, efforts to rationalize the methods and procedures of the GA focused in particular on the possibility of streamlining the agenda and making it more transparent. A number of important recommendations to this end (eg the grouping of related items under the same title, biannualization or triannualization of items, the discontinuation of items which have lost their relevance or urgency, the forwarding of items to other main or subsidiary organs or even to consideration by specialized agencies) are already contained in formal amendments to the Rules of Procedure (see Rules, Annex V, and UNGA Res 48/264, Annex I) or are recalled regularly in the report by the GC or resolutions by the GA.34 An important step towards agenda reform was taken at the 58th session when the GA decided that the agenda of the GA should be organized under headings corresponding to the priorities of the Organization as contained in the medium-term plan or the strategic framework, as appropriate (UNGA Res 58/316 (1 July 2004) Annex).

(b)  Debate

(aa)  General Debate

51  Deliberations at each session of the GA normally start with the general debate, where many States will be represented by their Heads of State or Government, foreign ministers, or other high representatives. This part of the debate is called ‘general’ because it does not come under any single item, allowing the participants to choose freely what to address and which issues to raise. By tradition, the first member State to speak is Brazil, followed by the United States as the host country.

52  The participation of observer entities in the general debate has long remained controversial. At the 31st session, the President of the GA ruled, after lengthy consultations, that if promoted by the course of the debate, he would grant observers the right to reply in particular cases, even in Plenary.35 In accordance with UNGA Res 3237 (XXIX) (29 November 1974), and under this presidential ruling, the PLO was granted the right to reply during the general debate of the 32nd session without formal opposition. The same right was granted to the PLO at the 33rd session. In a letter dated 18 October 1977,36 (p. 703) the Member States of the EC criticized the fact that observers were granted the same rights as UN member States. During the 40th session, India, as president of the non-aligned movement, took the initiative to invite the PLO and SWAPO to participate with the right to deliver a statement in the solemn meeting marking the 40th anniversary of the UN, which was to be conducted at the level of Heads of State or Government.37 Due to opposition of Western countries the sponsors of this initiative refrained from putting the resolution to a vote. As a compromise, the President of the GA referred in a statement to the continued validity of UNGA Res 3237 (29 November 1974) and 31/152 (20 December 1976). Since then, however, the GA has clarified the issue by expressly deciding to grant the right to deliver a statement during the general debate to the PLO (UNGA Res 52/250 (7 July 1998)), the Holy See in its capacity as observer state (UNGA Res 58/314 (1 July 2004)), and the European Union in its capacity as observer (UNGA Res 65/276 (3 May 2011) Annex).

(bb)  Debate by Agenda Item

53  The following substantive debate in the GA, whether in Plenary or in any of the committees, is then being held ‘by item’. As no speaker may address the meeting without permission from the President, delegates wishing to take the floor in formal meetings have to inscribe in the speakers list, and will be given the opportunity to speak accordingly. In practice delegations speaking for the members of larger groups (eg the Group of 77, the European Union, the African Union, etc) are being called up first.

54  On any given item in the Plenary as well as in the committees this ‘debate’ normally consists of the reading out of prepared statements by delegations which have requested to be included in the list of speakers. These statements are usually delivered upon instructions from capitals, and where a delegation also speaks for a number of others, agreeing on the text has often required lengthy interstate discussions. As this leaves delegations little room to react spontaneously to what previous speakers have said, the GA and some of its bodies are experimenting with more interactive forms of exchanging views. The GA has recommended consideration, in the context of the debate of all main committees, of the ‘use of innovative mechanisms, in accordance with the Rules of Procedure, such as panel discussions with delegations and interactive debates’ (UNGA Res 50/227 (24 May 1996) Annex I, para 16).

(cc)  Informal Thematic Debates

55  One way of discussing current issues outside the procedural strictures of a formal meeting that is being used more frequently now are so-called informal thematic debates, which the GA has decided to convene as a measure to strengthen its role and authority (UNGA Res 59/313, para 2). They are convened by the President of the GA on substantive issues of importance to member States that are not as such on the agenda, often after consultations with the membership. Presentation by experts in the form of panel discussions, the absence of official records, and an outcome in the form of a resolution are supposed to lead to a more lively and open exchange of views among delegations.38 The 65th Session under President Deiss so far saw the high point of thematic debates, with debates nearly every month on a wide range of issues, including the rule of law, (p. 704) international migration and development, disarmament and world security, the green economy, global governance, the responsibility to protect our intercultural dialogue. In addition the President of the 65th session also scheduled an unprecedented number of informal Plenary meetings to hear briefings on issues of relevance for the work of the GA, including by the Secretary-General or by representatives of the chairs of the G20 before or after important meetings.

(dd)  High-Level Meetings

56  In addition to the high-level meetings held in connection with the general debate (see MN 12), the GA can decide to hold individual high-level meetings throughout the year. These events often extend over several days and are attended by ministers and senior experts: they often include round-table discussions and a rich programme of side events organized by relevant international organizations, NGOs, or member States, and are meant to emphasize individual topics of current political relevance. The 65th session, for example, saw high-level meetings of the GA on HIV/AIDS (8–10 June 2011) and Youth (25–26 July 2011). The 67th session (2012–13) has featured, inter alia, a high-level meeting on the rule of law. With the depth and focus of their debates and the involvement of many stakeholders these high-level meetings have in recent years more or less replaced the format of the more costly special sessions in the social and economic sphere.

(ee)  Time Limits

57  Whereas sovereign member States have the right to express their opinion freely with respect to every agenda item, the GA saw the necessity of invoking certain limitations on the right to speak very early on. The Rules therefore provide for the competence of the GA (Rule 72) and its main committees (Rule 114) to limit the duration and number of statements by one representative. Further limitations on the right to speak are the closure of the list of speakers (Rules 73 and 115; this does not apply, however, to the right of reply, as a delegation may wish to exercise that right in response to what the very last speaker on the list has said) and the limitation of the number of speakers on certain procedural issues. As a matter of practice, no time limit applies to statements delivered in the general debate, but delegations are encouraged to observe a voluntary guideline of up to fifteen minutes for their statements.

(ff)  Procedural Motions

58  Procedural motions are meant to influence the conduct of proceedings. Under Rule 74, a delegate may move the adjournment of the debate on the item under discussion. In addition to the proposer, two other delegates may speak in favour of, and two against, the motion which shall then be put to the vote. Under Rule 75, a delegation may at any time move the closure of debate on the item under discussion. Permission to speak on the proposed closure shall be given to only two speakers opposing the closure, after which the motion shall be put to the vote. If the GA is in favour of the motion, the presiding officer shall declare the closure of the debate.39 Suspension or adjournment of an ongoing meeting can be requested under Rule 76. This will often be done where delegations need more time to consult with each other or within their groups, or if they need a short interruption of the debate to ask for instructions. Such motions shall not be debated but decided upon immediately (for motions to take no action see MN 85). (p. 705) All procedural motions are adopted by a simple majority, ie the majority of members present and voting.

(gg)  Right of Reply

59  A representative who considers that a previous representative has referred to his or her country in an inacceptable way may request permission to reply to that statement even after the speakers’ list has been closed (Rules 73 and 115). Statements made in the exercise of the right of reply shall, as a general rule, be made at the end of meetings (Rules, Annex IV, para 77), or at the end of the same day if there are two meetings allocated for the same agenda item (see Rules, Annex V, para 8). The number of interventions by one delegation in the exercise of this right is limited to two per meeting, the first one being limited to ten minutes, the second to no more than five minutes (Rules, Annex V, paras 9 and 10). In general, delegations are requested to use restraint in the exercise of their right of reply (Rules, Annex IV, para 77). These recommendations have been widely implemented. As a matter of courtesy, no replies are made to statements by Heads of State.40

(hh)  Point of Order

60  A point of order is an intervention directed to the presiding officer requesting him to make use of his powers, mostly relating to the manner in which the debate is conducted, to the maintenance of order, or to the observance of the rules of procedure.41 Points of order raised under Rule 113 involve questions necessitating a ruling by the presiding officer and are thus distinct from the procedural motions mentioned above that are decided by a vote of member States. A point of order must be immediately decided by the presiding officer, any appeal against the ruling must also be immediately put to the vote.42 Since points of order require a ruling by the presiding officer, the right to make them is limited to full members of the respective body. Palestine was given ‘the right to raise points of order related to the proceedings on Palestinian and Middle East issues, provided that the right to raise such point of order shall not include the right to challenge the decision of the presiding officer’ (UNGA Res 52/250, Annex);43 the same applies to the Holy See in ‘proceedings involving’ it (UNGA Res 58/314 (1 July 2003) Annex, para 7).44

61  Points of order are to be distinguished from other interventions, such as requests for information or clarification, or remarks concerning the material arrangements of the meeting such as seating, the functioning of the interpretation system, room temperature, insufficient lighting, noise, etc. Remarks of this kind made during a meeting may (p. 706) have to be dealt with by the presiding officer, but they do not require a ruling, which is why in practice also other participants may make them.45

6.  Decision-making

62  Decision-making in the GA has undergone considerable change during the past six decades. Not all of these changes are reflected in the Rules of Procedure. Corresponding to the respective Charter provisions, the Rules foresee ‘voting’, ie the majority rule, as the way of taking decisions (Rules 82–91). A strict reading of those provisions might suggest that voting is indeed the only such method; in practice, however, only a small number of the decisions and resolutions adopted at each session get voted upon, whereas by far the largest part is adopted without a vote.

(a)  Resolutions and Decisions

63  The term ‘decision’ as used in Art. 18 refers to all types of action which the GA takes by vote while performing its functions under the Charter, including elections.46

64  Outside elections the GA ‘decides’ in the form of decisions or resolutions. Decisions, which are often of a more technical nature, are mostly drafted by the Secretariat and are introduced by the presiding officer. The GA adopts between 80 and 100 decisions each session. The bulk of the work, however, gets done in the form of resolutions, of which the GA adopts between 250 and 300 per session. Resolutions normally need to be proposed by a member State (the sponsor). Other member States who want to express their particular support for the text can become co-sponsors, either by signing the draft resolution before it is submitted to the Secretariat, or later through a respective declaration before or even after the adoption of the resolution. Some resolutions, however, are drafted and submitted by the chairman of a committee or sub-committee (chairman’s draft), a bureau member on behalf of the entire bureau, or by a facilitator who submits the text on behalf of their respective delegation(s). In this case the drafts are often not supposed to be co-sponsored.

65  Draft resolutions should be submitted in writing as early as possible during a debate in order to enhance and facilitate the negotiating process (see Rules, Annex V, paras 87–88), but not before the text is ready for action, because any subsequent amendment requires a costly and time-consuming revision process of the respective documents in all six languages. They should be as clear and succinct as possible (see Rules, Annex V, para 95)—a recommendation which is being largely disregarded in practice.

66  Where an item has been allocated to a Main Committee and the Committee has adopted a resolution, the Committee’s draft resolution is submitted to the Plenary for final decision. Where adoption of the resolution would involve expenditures of the UN, the draft has to be accompanied by an estimate of expenditures prepared by the Secretariat. No resolution in respect of which expenditures are anticipated shall be adopted by the GA until the ACABQ has had the opportunity of stating the effect of the proposal on the budget of the UN (Rule 153).

(p. 707) 67  The adoption in the Plenary is independent of that at Committee level, ie member States are free to change their vote at the higher level. It is thus not altogether rare for a draft resolution that was voted upon in the Committee to be adopted without a vote or receive different votes in the Plenary because delegations changed their minds after the vote in the Committee.

(b)  Majority Required

68  The principle that decisions of the General Assembly are taken by a majority vote is enshrined in Art. 18 of the Charter. Depending on the substance of the matter in question a simple or a two-thirds majority of the members present and voting is required. In that respect Art. 18 distinguishes between ‘important questions’ (para 2) and ‘other questions’ (para 3). Paragraph 2 draws up a list of questions which are deemed to be important in this sense, thus requiring a two-thirds majority. The formulation ‘these questions shall include’ indicates that the list is not exhaustive.47 Paragraph 3 sets forth that the majority required for decisions on ‘other questions’ shall be a simple majority of the members present and voting. It further provides for the creation of ‘additional categories of questions to be decided by a two-thirds majority’. The determination of such additional categories shall also be made by a simple majority of the members present and voting. Rules 82 to 91 (voting) and 92 to 95 (elections) restate and supplement these general Charter principles.

69  For the purpose of the Rules on voting, the phrase ‘members present and voting’ means those members casting an affirmative or negative vote. Members which abstain from voting are considered as not voting (Rule 86). The fact that those who abstain are not counted for establishing the majority required can lead to situations where a resolution gets adopted even though the number of affirmative votes is relatively small and may be far outweighed by the number of abstentions.48

70  The Charter principles in Art. 18, however, do not prevent the GA from imposing even stricter majority requirements. In its Res 53/30 the GA decided ‘not to adopt any resolution or decision on the question of equitable representation on and increase in the membership of the Security Council without the affirmative vote of at least two-thirds of the members of the GA’, which means that for decisions of this type no fewer than 128 ‘yes’ votes would be required.

(c)  Quorum

71  It is a fact of life that not all 193 members of the GA or the Main Committees can be present at any given time during the entire meeting. The purpose of the quorum in Rules 67 and 108 is to fix the minimum number of representatives that must be present at a formal meeting. Thus the presiding officer may declare open and permit the debate to proceed when at least one-third of the members of the GA or one-quarter of the members of a Committee are present.49 To take action on a proposal, however, the presence (p. 708) of a majority of the members of the GA shall be required. The quorum is based solely on the member’s presence at the meeting, it does not require that the respective member is eligible to vote.50 If it is clear that a quorum does not exist prior to the meeting the presiding officer should not open the meeting before such quorum is obtained. If during the meeting a representative challenges the existence of the quorum and it is then determined that there is indeed no quorum, the meeting shall be immediately suspended or adjourned.51

72  The decision of the GA in Res 53/30 concerning decisions on the issues of equitable representation on and increase in the membership of the Security Council (see MN 70) has also affected the quorum for any decision on this type of question: as the required number of affirmative votes cannot be reached if less than two-thirds of the members are present, the quorum for this type of decision would also be at two-thirds of the members of the GA.

(d)  Amendments

73  Amendments moved to a proposal are to be voted upon first (Rule 90). Disputes relating to the basic question of whether the GA has the authority at all to decide upon a specific issue are put to the vote immediately before a vote on the substantive proposal is taken (Rule 79).

(e)  Methods of Voting

(aa)  Roll-call Vote, Electronic Voting System

74  With the introduction of electronic voting devices the voting by show of hands or by sitting and standing and the roll-call vote (for the procedure see Rule 87a),52 which are mentioned in Rule 87 as the ‘normal’ means of voting, have been practically replaced by a mechanical recorded vote (Rule 87b). A roll-call vote can still be requested by any representative, but when an electronic voting system is available, a roll-call vote should as far as possible not be requested (Rules, Annex VII, para 2). The last roll-call in Plenary was recorded on 9 December 1992, during the 47th regular session, on the subject of Antarctica.

75  In case of error delegates may ask for correction of their vote. Following a ruling of the President at the 15th session, a request for correction of a vote after the closure of the voting procedure can be granted where the result of the vote has not yet been proclaimed.53 Since the introduction of mechanical means, however, belated requests to change a vote after the voting machine has been locked are no longer granted; in practice the locking of the voting machine is announced in advance by the chair to give delegations a last chance to check their vote. Delegations who cast their vote erroneously may advise the Secretariat that they had intended to vote differently; this does not change the result, but their declaration is reflected in the meeting record.

(p. 709) (bb)  Adoption without a Vote and Consensus

76  Whereas the League of Nations required unanimity on all decisions of any importance, it seemed natural for the victorious ‘United Nations’ after World War II to follow a democratic approach and allow for majority vote as the standard procedure of decision-making. But with the expansion of UN membership the interests and positions of member States have become more and more divergent, and ‘natural’ majorities shifted away from the old founding members. It also became apparent, though, that resorting to a vote does not really lead towards the solution of world problems which require the commitment of all States. International cooperation could not be secured either by ignoring the majority or by out-voting the minority.54 The Rules, however, do not make reference to decision-making other than by voting. So for the reasons above, and in the exercise of its discretion to organize its own procedure, the UN has developed methods of decision-making which aim to arrive at an agreement on the terms of a resolution or decision without having to resort to a formal vote (‘consensus’).55 Over the years it has become established practice of the GA and its Main Committees to strive for such ‘consensus’ wherever possible.

77  One has to differentiate, though, between consensus-seeking as a negotiating technique and consensus as a method of taking decisions without a vote.56 Going for consensus in negotiations means that all participants should make every effort—through consultations and negotiations,57 by trying to explore all possibilities for compromise, and by a readiness to accept, in the end, a mutual give-and-take on all sides—to come to an agreement and achieve a decision that is sufficiently acceptable to be adopted without a vote. Consensus implies that in the end all delegations can go along with the decision, however reluctantly, and that even those who are not in complete agreement are prepared not to block, or ask for a vote on, the decision. The difference to other forms of decision-making lies in the fact that delegations are indeed committed to making every effort possible to integrate all views and to find a formula which all participants in a negotiation can go along with. While this may help to arrive at solutions accepted by all, the inherent danger lies in the fact that it may indeed stall the taking of a decision, as a small minority may always ask for continuation, claiming that not all possibilities for a consensus have been exhausted.58

(p. 710) 78  As a method of decision-making the consensus procedure simply means that—in the absence of a specific request for a vote—draft resolutions and decisions are adopted without a vote.59 In cases where the presiding officer, who is of course familiar with the negotiating history of the proposal that is up for adoption, has not received any specific request for a vote and has good reasons to believe that the committee or the GA is indeed prepared to skip the vote, he will ask whether, in the absence of any objection, he ‘may take it that the Committee/the General Assembly wishes to adopt the proposal without a vote?’ It is then up to a delegation to block the adoption of the proposal by lodging an objection or by specifically requesting a vote on the proposal. It is for the objecting delegation to formulate the grounds for its objection, which has the same effect as requesting a vote on the proposal. If there is no such request or objection, the presiding officer will then simply declare that ‘it is so decided’, ie that the GA has decided to adopt the text without voting. Delegations who do not wish to join such a ‘consensus’ but who, for political reasons, are equally reluctant to call for a vote, can declare their non-committal and distance themselves from the consensus in an oral explanation. This declaration will be reflected in the meeting records, but politically the resolution will be counted as a ‘consensus text’ nonetheless.

79  The same practice of adopting resolutions without a vote has emerged even in cases where parts of a proposal have been voted on separately. Despite a vote on parts of a resolution, the text as a whole can still be adopted without a vote if no vote on the entirety of the text is being requested.60 The practice of adopting decisions without a vote is also being used for the large number of technical and other uncontroversial resolutions and decisions. In UN parlance, however, they too are often referred to as ‘consensus resolutions’ even though no difficult negotiations may have taken place at all.

80  In legal terms resolutions adopted without a vote are no more or less ‘binding’ than those adopted ‘only’ by a vote, as under Art. 13 all GA resolutions are generally only recommendations. The difference between the two types of adoption is political. Whether and to what extent a resolution adopted without a vote is really supported by all member States is a matter of interpretation and has to be determined by taking into account the entire negotiating and decision-making history of the text, including any declarations made upon its adoption.

81  The consensus procedure, even though it is today the preferred method of reaching decisions in the practice of UN organs, has actually never been expressly referred to in the body of the GA’s Rules of Procedure. The first UN body to have officially introduced ‘consensus’ as its procedure of decision-making was the Committee on the Peaceful Uses of Outer Space in 1961. Since then its use has rapidly spread to other subsidiary organs of the GA. But only very few other bodies have formally agreed on using it as their prevalent mode of decision-making, either in their rules of procedure61 or in the form of an understanding read into the records by their chairperson. At the universal level, the 1974 World Population Conference was ‘to reach decisions on the basis of consensus, which is understood to mean, according to UN practice, general agreement without vote, but not necessarily unanimity’;62 another famous example is the UN Conference on the Law of (p. 711) the Sea, where, after a long and bitter debate on methods of work in the First Committee at the 28th session in 1973, a statement by the President of the Conference was appended to the rules of procedure that ‘the Conference should make every effort to reach 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’.63 The Rules themselves made clear, however, that after a determination that all efforts at reaching general agreement had been exhausted, putting such a matter to the vote was indeed still possible.64

82  As to the GA, the Special Committee on the Rationalization of the Procedures and Organization of the GA in 1971 considered in its report, ‘that the adoption of decisions and resolutions by consensus is desirable when it contributes to the effective and lasting settlement of differences’, but also emphasized ‘that the right of every member state to set forth its views in full must not be prejudiced by this procedure’. That recommendation was not formally incorporated into, but appended to the Rules in an Annex (see Rules, Annex V, para 104).

83  The consensus principle was again one of the key issues during the debate concerning the budget reform at the 41st session. Following a legal opinion by the Legal Counsel of the SG, who affirmed the legality of the procedure, the GA adopted without a vote a resolution whereby it agreed ‘that the Committee for Programme Coordination should continue its existing practice of reaching decisions by consensus’ and considered it ‘desirable that the Fifth Committee, before submitting its recommendations on the outline of the programme budget to the General Assembly in accordance with the provisions of the Charter and the rules of procedure, should continue to make all possible efforts with a view to establishing the broadest possible agreement’. But the GA also took care to put both recommendations under the umbrella affirmation ‘that the decision-making process is governed by the provisions of the Charter of the UN and the rules of procedure of the GA’ (UNGA Res 41/213 (19 December 1986)).

(cc)  Vote by Secret Ballot

84  The Rules currently do not provide for secret ballot other than for elections. Yet the absence of an express provision does not, as a matter of principle, prevent the GA from resorting to a secret ballot if it so decides. The advantage of a secret ballot would be that it would allow delegations to cast a vote while at the same time avoiding possible repercussions that might result from an open or recorded vote.65

(f)  Motion to Take No Action

85  An important procedure to prevent action from being taken altogether is a motion to take no action. This motion is not expressly mentioned in the Rules but has developed out of practice. Its aim is to bar the GA from taking action on a certain proposal in the course of the current session. Unlike the adjournment of the debate on the item under discussion—which postpones the debate to a later date—a motion to take no action defers a decision and is silent on the future of the contested proposal. The first motion of (p. 712) this kind occurred at the 38th session, when Iran submitted an oral amendment to the draft decision by which the GA was to approve the report of the Credentials Committee, proposing that ‘the GA approves the report of the Credentials Committee except the credentials of Israel’. Speaking on behalf of the Nordic States, Norway tabled a proposal that no action be taken on the Iranian proposal during the course of that session of the GA. A procedural debate erupted in which the Legal Counsel affirmed the legality of this procedure in accordance with Rule 74.66 The motion by Norway was adopted by seventy-nine votes to forty-two, with nineteen abstentions. Recent cases included motions to take no action by Russia on a draft resolution tabled by Georgia on the internally displaced persons in the 63rd and 64th sessions. The motions were defeated and the resolution was then adopted. Member States speaking out against the motion emphasized the right of sovereign States to request a discussion of any item in the GA, a right that would be stifled if the GA accepted motions to take no action.67

(g)  Absence and Non-Participation

86  ‘Members present and voting’ are, according to Rules 86 and 126, only those members casting an affirmative or negative vote. Abstentions are qualified as not voting. If no vote is recorded, a delegation is considered ‘absent’. Absence and abstention therefore reduce the number of votes required to establish a simple or two-thirds majority.

87  Not taking part in a decision may be meant as a strong political expression of a delegation’s basic difficulties with a decision. ‘In the room’, however, it may be difficult to tell the difference between a delegate who boycotts a vote for political reasons and one who simply misses the moment due to other reasons. Delegates who wanted to demonstrate their basic opposition to a draft decision or resolution without having to join the voting have thus developed a procedure whereby they remain in their seat but declare their ‘non-participation in the vote’. Initially there was considerable disagreement over how to qualify such ‘non-participation in the vote’ despite physical presence. In a ruling at the 18th session, the President of the GA, after consultations with the SG and the chairpersons of the Committees, decided that a delegation which declared it was not participating in a vote was to be regarded as being absent and that it was not to be listed as participating in the vote in the records of the meeting. The member may, however, request in an explanation of vote (before or after the vote) that its ‘non-participation’ be reflected in the records of the meeting.68 This procedure is established practice today.

(h)  Explanation of Votes

88  The President may permit members (except the proposer, because his positive vote does not need explanation) to explain their votes, either before or after the vote (Rule 88). Explanations of votes should be limited to ten minutes. When the same item is considered in Plenary and in a main committee, delegations are urged to give an explanation of their vote only once, except when the content of the statement changes (see Rules, Annex VI, paras 6–7). These recommendations have not been given the necessary attention.

(p. 713) (i)  Elections

89  Whereas Rule 92, for reasons of principle, calls for elections by secret ballot (for details of the procedure see Rules 93 and 94), practice proved to be more flexible. Exceptions, such as election by acclamation, have been made for the election of the President or the Vice-Presidents or relating to the composition of subsidiary organs. At its 34th session, the GA, upon the recommendation of its President, decided that the practice of dispensing with the time-consuming secret ballot when the number of candidates corresponds to the number of seats to be filled (the so-called ‘agreed slate’) should become standard procedure unless a delegation specifically requests a vote on a given election (see Rules, Annex VI, para 16). In some recent cases, certain candidates were elected by acclamation and others by secret ballot at one and the same election. In another case at the 31st session, the GA elected four out of five candidates by acclamation on the basis of agreed slates recommended by their respective regional groups and referred the election of the fifth member back to ECOSOC. In other cases, elections of candidates nominated by some regional groups were done by acclamation while postponing the election of the remaining officeholder, giving the respective regional group another chance to come up with an agreed candidate.

7.  Documentation