Thank you for your comment in response to my post.
Here is my reply.
First of all, according to this news article http://bit.ly/ZEQiAs the Chair Mr. Bashir has admitted that some Members gave five preferences. Secondly, the EU has, to my knowledge issued no denial that it did not do this or encourage other Members to do so, although it is now some days since the allegations emerged.
As to your comment about the Troika using the language imploring rather than requiring, this simply reflects the fact that the Troika is the servant of the Members and has no authority to sanction, only to censure (which it should have done). But this in no way means that the underlying agreement or understanding between Members reflected in the Troka document is that the limit of four preferences is a mere wish or desideratum rather than a norm which gives rise to a significant reliance interest. In fact, according to the same news story, Mr. Bashir himself refered to giving five preferences as a "deviation": one does not describe conduct as deviant, if it does not break or transgress a rule or norm.
Then there is the related matter of prohibition on negative preferences. If you don't have a real limit on positive preferences than the prohibition on negative preferences becomes meaningless. In a selection round where you go in with nine candidates and five are meant to remain standing afterward, if you express five positive preferences, you are in effect issuing four vetoes or negative preferences. This is why the number four was chosen, not for mystical or cosmological reasons.
In any case, Kenya has a remedy that does not require it to prove a violation of "hard" international law before a court or tribunal. It can simply block the process. Entirely legitimately, in my view. A hard rain's a-gonna fall...
