ISO forever reminds the world that it develops “voluntary consensus standards.” This is prompted by international agreements, such as those of the World Trade Organization, that demand such standards be both voluntary and built by consensus. Imagine if Microsoft created a standard that required everyone to use Windows on anything with a computer chip in it, and then that standard was somehow made part of international law; these kind of arrangements would be “barriers to free trade” which the WTO is tasked with eradicating.
So when ISO publishes management system standards, it has to ensure the world that the resulting standard wouldn’t be mandatory – organizations can use it, or not, at their choice – as well as developed under participatory conditions that remove the influence of any single company or individual, or even any single nation. To accomplish this, WTO says that ISO standards must be developed by “consensus.” The problem, however, is that mankind has not yet agreed to a common definition of the term.
The dictionary provides a set of definitions which likely “ring true in our guts” since they sound about right.
“A general agreement about something : an idea or opinion that is shared by all the people in a group.” [Merriam Webster]
“A generally accepted opinion or decision among a group of people.” [Cambridge English Dictionary]
“General or widespread agreement.” [Collins]
These definitions share a single trait: agreement is reached between parties which results in consensus. Keep that in mind as we move forward.
But what appears in the dictionary is not always what is used in formal or technical settings, such as during international negotiations or trade disputes.
The wranglings about the meaning of “consensus” have a broad importance for decision-making with regard to treaties and in other international conferences. Since the 1970s it has become standard practice in many important diplomatic conferences that decisions are taken, where possible, by consensus. Although this procedural device is ubiquitous, as well as being important for the way in which international law is made, the arguments at the [2013 UN Arms Trade Treaty] conference lay bare the ambiguity that lies at the heart of this concept. There is no consensus on the meaning of “consensus”. The consensus procedure is an important device for achieving broad-based agreement on international treaties. It is therefore important to have some clarity on what it means. Lack of clarity on the procedure might well have an adverse impact on the process by which treaties and other international decisions are reached with the result that the substantive outcomes might be less desirable.
Things become more complicated when assessing the different intended meanings of the term; often, in international fora and treaty negotiating sessions, the concept of “consensus” was applied to determine if a vote was required: if the parties in the negotiation agreed unilaterally, and there was no objection, a vote need not be held at all, since the outcome was already determined. A single objection would thus break consensus, forcing the issue to a vote unless the offended party could be placated.
The other view of consensus is not to replace a vote, but to augment it; in this model, a “general agreement” is reached and this is deemed “consensus,” leading to an eventual vote no matter what. Attempts are made to achieve consensus, in order to ensure buy-in from all parties, but the vote will still occur, and those who disagree with the majority and prevent consensus will still have an opportunity to vote down the proposal.
These were identified as “passive” and “active” consensus:
This we will call the active consensus procedure to distinguish it from passive consensus procedure, which is the mere substitution of consensus for voting as a way of making decisions. Passive consensus is often used to avoid voting when there is fear that a destructive polarization will result from a vote. By itself, however, it poses the danger that discussion will drag on interminably, and that the outcome may be no decision at all. Active consensus procedure addresses this problem, and offers some hope that consensus can be turned into an effective, as well as politically necessary, technique.
In addition to these two basic models, there is an infinite number of different interpretations residing between them, as well as outside of them. As Akande said, “there is no consensus on the meaning of consensus.”
If GATT preceded WTO, we need to go back to its definition of consensus, as that would likely have impacted on any international standards developer, including ISO. Unfortunately, GATT never formalized a definition. Instead, we have to look at GATT’s contextual surroundings. Contemporary consensus-based decision making began after World War II, when the world moved from simple majority rule.
At the beginning of the post-World War II period the decision making procedure in international conferences and organizations change from one of unanimity to majority rule. A typical example is the UN Charter which practically abandoned the unanimity rule in favor of the majority rule. It also provided for a one-State-one-vote system. GATT 1947 followed both trends.
Officially, GATT applied a majority rule approach to decision making, but within its committees, GATT leaned towards a consensus approach. Perhaps coincidentally (or perhaps not) the UN likewise was utilizing consensus decision making prior to voting, and eventually the UN Conference on the Laws of the Sea (UNCLOS) included a written definition, indicating, partly, that consensus required “an absence of formal objection.” This, however, was only applied in extremely limited circumstances, and required the formation of special committees to address the objections raised. Elsewhere in the world, similar definitions arose.
The reason for the shift from majority rule to consensus as witnessed by the practice or respective regulations of many international conferences and international organizations lies in the increased number of States, the establishment of groups of States on the basis of political and geographical affiliations or, in particular, economic characteristics. As a result of this fragmentation of the community of States there is a likelihood that decisions may be taken by majority, even an overwhelming one, which would not be accepted and implemented by the minority group of States. It was feared that the one-State-one-vote system together with majority voting might lead to automatic majorities which did not necessarily include those States particularly affected by such decisions. Accordingly, the consensus procedure is seen as protecting the equilibrium between the groups of States, and thus the interests of individual States.
ISO, however, applied a remarkable amount of force and bent the definition to its will, merging the prior concepts of “passive” and “active” consensus into a single definition that, ultimately, defied all definitions before it. ISO now claimed that consensus was, as follows:
General agreement, characterized by the absence of sustained opposition to substantial issues by any important part of the concerned interests and by a process that involves seeking to take into account the views of all parties concerned and to reconcile any conflicting arguments. Consensus need not imply unanimity.
This definition broke the dictionary utterly. Remember that under normal concepts of consensus, consensus is reached after an agreement is made by the parties; the default posture is that a thing is not approved until it is approved.
ISO’s definition turned that on its head, and made international approval the automatic default, a presupposed state that takes effect the second someone puts pen to paper when drafting a standard. It places the burden of stopping a standard from proceeding upon those objecting to it. With ISO, a thing is always approved, unless it’s not approved. Consensus exists automatically and immediately, unless someone can mount sufficient “sustained opposition” to convince the leadership otherwise. This convenient position ensures that ISO can push its standards through committees to begin the selling of the standards, even when there is a lack of general agreement, and even in the face of chaotic discord among the participants, as we will see.
At first blush, this sounds like the “active” consensus approach, in that it requires achieving consensus before voting occurs; however, this is not the case. The “active” consensus model still presupposes a thing is not approved until it gains approval; and then, if an objection is raised, the burden is on the approving majority to work with the objecting minority to address their concerns. Again, at first glance, ISO appears to address this when it says it will “take into account the views of all parties concerned and to reconcile any conflicting arguments.”
But if we look further into ISO procedures, we find they have invented a supporting set of rules that all but ensures this can never be employed in any meaningful way. Per the ISO Directives, Part 1, 4th Edition from 2013:
The decision to circulate an enquiry draft shall be taken on the basis of the consensus principle. It is the responsibility of the chair of the technical committee or subcommittee, in consultation with the secretary of his committee and, if necessary, the project leader, to judge whether there is sufficient support bearing in mind the definition of consensus given in ISO/IEC Guide 2:2004.
What this grants the various chairs is the power to determine what constitutes “sustained opposition.” In practice, this is executed in a manically whimsical manner; worse still, that chaos was later embedded in the update to the ISO Directives, Part 1, with the 6th edition published in 2015:
In the process of reaching consensus, many different points of views will be expressed and addressed as the document evolves. However, “sustained oppositions” are views … which are maintained by an important part of the concerned interest and which are incompatible with the committee consensus. The notion of “concerned interest(s)” will vary depending on the dynamics of the committee and must therefore be determined by the committee leadership on a case by case basis. The concept of sustained opposition is not applicable in the context of member body votes on CD, DIS or FDIS since these are subject to the applicable voting rules.
Those expressing sustained oppositions have a right to be heard and the following approach is recommended when a sustained opposition is declared:
— The leadership must first assess whether the opposition can be considered a “sustained opposition”, i.e. whether it has been sustained by an important part of the concerned interest. If this is not the case, the leadership will register the opposition (i.e. in the minutes, records, etc.) and continue to lead the work on the document.
— If the leadership determines that there is a sustained opposition, it is required to try and resolve it in good faith. However, a sustained opposition is not akin to a right to veto. The obligation to address the sustained oppositions does not imply an obligation to successfully resolve them.
The responsibility for assessing whether or not consensus has been reached rests entirely with the leadership. This includes assessing whether there is sustained opposition or whether any sustained opposition can be resolved without compromising the existing level of consensus on the rest of the document. In such cases, the leadership will register the opposition and continue the work.
This is a fantastic departure from an already bastardized definition. Whereas ISO originally claimed consensus includes “a process that involves seeking to take into account the views of all parties concerned and to reconcile any conflicting arguments,” we then find, buried in procedural documents which are largely hidden from the public, caveats that undermine this position further, by indicating “the obligation to address the sustained oppositions does not imply an obligation to successfully resolve them.”
Read that again: the ISO definition says it will “reconcile any conflicting arguments,” but the ISO procedures say there is no “obligation to successfully” do so. In short, so long as ISO pretends to try, it has met its goal.
As usual, ISO then points anyone who wants to object to this arrangement to a complicated, bureaucratic process which is guaranteed to bury the complaint:
Those parties with sustained oppositions may avail themselves of appeals mechanisms as detailed in Clause 5.
The appeals process is, naturally, complicated, and ultimately the TMB reserves final decision authority. Since the TMB ultimately serves ISO’s publishing calendar, it’s not difficult to predict how they will rule.
If this sounds like fantasy, it’s not. During a recent conflict in TC 262 (risk management), the Technical Committee almost split in two, as arguments arose over an upcoming revision to ISO 31000. Allegations of defamation and threats of litigation between the members broke out, all while TC 262 Chair Kevin Knight ignored them, focusing instead on giving speeches to sell standards. It was high drama, and by any measure the fight represented the clearest case of “sustained opposition” ISO had seen in some time; nevertheless, a working group chair ruled that while the conflict – which, again, had reached to the point of TC members threatening to sue each other – did constitute sustained opposition, the TC couldn’t do anything about it because it was “unresolvable sustained opposition” and therefore the leadership did not have to take any action. While I agreed with his decision in this case – the goons presenting the opposition were acting like crack addicts in a clown car – it was nevertheless disturbing to see a single person negate an organized contest with the stroke of a pen because resolving the conflict was, by golly, just too gosh-darn hard.
And so yet another hurdle is thrown at anyone opposing the leadership’s whims on a given standard. Not only must one mount opposition, then prove that it is “sustained,” but one must be willing to yield to the leadership if challenged. If not, the opposition can be deemed “unresolvable” and thus dropped anyway. So the message is clear: you can gripe, but unless you’re willing to back down, we can ignore you purely on the basis of your intransigence. For the leadership, it’s win-win, since it makes it a practical impossibility that anyone could ever mount any challenge to a standard that would meet all the various tests and milestones.
So a typical non-ISO consensus model may look like this:
Obviously this runs the risk of creating an indefinite review-and-approval cycle, if every possible objection must result in the product being returned to the gate. While a balance is clearly possible, ISO’s model instead turns it into a beast whereby any objection, no matter how serious, becomes a Herculean task, nearly impossible to ever achieve, and where “push it to print” is always the default result.
Keep in mind that while all this is happening, the TMB retains ultimate authority to shut the TC down if ISO’s targeted publication date is affected, so all of these steps must occur while simultaneously maintaining a timetable pre-set by ISO.
Even if a proposed objection makes it through those hurdles, it’s still not finished. Final changes to any existing draft must undergo review by the Secretariat of the particular body drafting the standard, such as that of TC 176. The Secretariat “dispositions” each comment by ranking it with one of three possible conditions:
- Accepted Fully – the comment results in revised text matching that proposed in the comment, or close to it
- Accepted Partially – the Secretariat accepts and implements parts of the comment, while ignoring or rejecting the rest
- Not Accepted – the comment is rejected outright, and not implemented at all
- Noted – the comment is merely “noted” by the Secretariat, which then does nothing with it, or takes it under advisement.
The TC Secretariat is aggressive about using its final veto pen, too. For the comments received during the DIS review of ISO 9001:2015, TC 176 received a total of over 3,000 English-language comments, and simply rejected half of them.
The Secretariat reserves the right to reject any feedback it wishes, and is not required to provide any justification or rationale. For example, the Dutch provided an excellent summary of what was a major complaint regarding risk-based thinking, and its reliance on the concept of “positive risk”:
The explanation … is not helping to understand the difference between positive risk and opportunity.
They then provided the following recommendation:
Only use the term “risk” in ISO 9001. Delete the term opportunity/opportunities when used in combination with risk.
That comment was rated “Technical comment – not accepted” without any explanation by the TC 176 Secretariat. Likewise, the following was submitted by the Italians (emphasis theirs):
Replace “risks and opportunities” with “risks associated with threats and opportunities”.
This, too, was rejected by the Secretariat.
Remember, these are the comments that had already survived the seven-hurdle gauntlet and were approved for submission to TC 176. If 50% of the those comments still get rejected, we are so far from the concept of consensus, we are practically standing on the surface of Neptune.
The ISO Directives, enhanced by the TC 262 debacle, therefore create a precedent where a Technical Committee can write literally anything, even standards that violate international law, but which would automatically be treated as approved. Even if extraordinary opposition is mounted, the standard could still reach publication on the whim of a single, determined chairperson. Until someone is willing to sue ISO – and how that would look is anyone’s guess – ISO can publish whatever it wants.
Under no possible interpretation can what ISO does be considered “consensus,” and yet they proceed nonetheless, dropping the word into their marketing bits, while never mentioning all the supporting caveats and procedural loopholes.
Perhaps this complete alienation from user feedback is why, as we are about to see, ISO 9001 is about as popular as a leper selling timeshares for vacation properties in New Jersey.