The Right to Participate in the Debates of the Security Council
The Security Council bears the primary responsibility for the maintenance of international peace and security. In the exercise of this duty it has adopted resolutions, ranging from authorizing Member States "to use all necessary means" to expel Iraqi forces from Kuwait, to establishing the International Criminal Tribunals for Yugoslavia and Rwanda. The Security Council has 15 members, five of which--Britain, China, France, the Russian Federation, and the United States--have permanent seats and the veto over Council decisions. The remaining ten members are elected for two-year terms by the General Assembly. Given its limited membership and the far-reaching resolutions adopted by the Council the extent to which non-members are able to participate in the Council's discussions is a question of some importance.
Under Article 31 of the Charter any member of the UN may participate, without the right to vote, in the discussion before the Council, if the Council "considers that the interests of that member are specially affected." Under Article 32, if either a non-member of the Council or a state not member of the UN is party to a dispute under consideration by the Council, the affected state "shall be invited to participate, without vote, in the discussion relating to the dispute." The provision in Article 32 is peremptory.
The Security Council has adopted rules of procedure dealing, among other things, with the participation of non-members. Rule 37 provides for the participation of member states when the Security Council considers that their interests are specially affected, basically re-stating the Charter provision. The rules do not cover the case of participation by parties to a dispute; here the Charter provision, Article 32, applies directly. Under rule 39 the Council may invite members of the United Nations Secretariat (the Secretary-General and his staff) or other individuals, whom it considers competent, to assist it in its deliberations by providing it with information.
The rules of procedure do not strictly exhaust the grounds on which invitations to participate have been extended by the Council. For instance, the invitations extended to the Permanent Observer of the Palestine Liberation Organization (PLO) to the United Nations (later the Permanent Observer of Palestine) were not granted explicitly under rule 37 or 39, but instead "with the same rights of participation as under rule 37." Until 1992, the representative of the United States on the Security Council consistently opposed this position on legal and political grounds. Since the 3340th meeting, on 28 February 1994, the invitation to Permanent Observer of Palestine has been extended as follows: "to participate in the debate in accordance with the rules of procedure and the previous practice in this regard." Since this compromise was reached the United States has ceased to object to invitations extended to the Observer of Palestine.
A pragmatic position is also taken with respect to participation by the Federal Republic of Yugoslavia (Serbia and Montenegro) in the Council's meetings. After the dissolution of the former Socialist Federal Republic of Yugoslavia (SFRY) the question arose whether the Federal Republic of Yugoslavia (FRY) would continue the SFRY's membership in the United Nations. Pursuant to a recommendation by the Security Council, the General Assembly decided in Resolution 47/1 on 22 September 1992 that the FRY "should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly." The decision created a unique situation, because it did not terminate Yugoslavia's membership. In 1992 the Legal Counsel of the United Nations stated that GA Resolution 47/1 did not remove the right of Yugoslavia to participate in the work of the organs other than Assembly bodies.(1) In the wake of the General Assembly's decision, the Security Council has permitted representatives of the FRY to participate, not under rule 37 or rule 39 of the Council's provisional rules of procedure, but under a sui generis dispensation. In response to a written request to participate, the representative of the FRY is invited by name.
The Security Council has been very liberal in permitting non-members to participate. Very few requests to participate are denied. Between 1981 and 1997 only three requests by states were denied or not acted upon.(2) However, in June 2000 the Security Council voted against permitting the representative of the Federal Republic of Yugoslavia (FRY) to participate in a meeting at which the Council received a briefing on the situation in the Balkans.(3) This case is of particular interest because in the recent practice of the Council it has been exceedingly rare for a procedural question such as this to come to a vote in the course of a public meeting. The norm is for such matters to be resolved behind the scenes during informal consultations among the Council members, or through bilateral negotiations undertaken by the President of the Council.
The end of the Cold War saw an increase in the activity and engagement of the Security Council. In the context of efforts to reform of the Security Council, calls for greater openness and transparency came to the fore. During the 1990s the Council expanded the format of meetings. Rule 48 of the Council's provisional rules of procedure provides that, unless it decides otherwise, the Council shall meet in public.(4) The traditional meeting, held with the aim of adopting a resolution, was supplemented with two new types of meeting--"open debates" (or "orientation debates") and "open briefings." This terminology has no official status and is not necessarily logically consistent, reflecting rather the rapid development in the Council's practice. The "open" or "orientation" debates are a new meeting-format introduced in the mid-90s. Their purpose is to encourage discussion by members of the United Nations, either around a general theme or early in the Council's consideration of a particular matter. The first-ever meeting of the Council on AIDS in Africa on 10 January 2000 is a prime example of a meeting that took place under this expanded format.(5)
The "open briefing" format represents a significant development. Prior to its introduction briefings of the Council took place during informal consultations among the Council members, which are not open to non-members or the public and of which no official record is kept. Briefings, a typical example being assessments and reports by the staff of the Department of Peace-keeping Operations, are a crucial part of the Council's work. At the end of 1998, the Council, in the interest of enhancing the transparency of its working methods, decided that briefings by the Secretariat or other persons could be held during public meetings.(6) The first "open briefing" was held on 10 November 1998, at the 3942nd meeting when the United Nations High Commissioner for Refugees briefed the Council. At such "open briefings" non-members may attend, but the right to speak is as a rule limited to members of the Council.(7) The practice is not uniform. At a recent briefing on the situation in East Timor several non-members were invited to participate under rule 37 and proceeded to make interventions.(8)
At an open briefing held on 22 March 2000 in connection with the situation in Bosnia and Herzegovina, the representative of Germany, a non-member of the Council, began his statement in the following terms: "I appreciate that Member States that are not members of the Council but are highly involved in the implementation of the Dayton/Paris Peace Agreement are being given an opportunity to express their views on the situation in Bosnia and Herzegovina. My Government very much welcomes this step towards more transparent and, therefore, credible work by the Council."(9)
States which have a strong regional or other interest in the matter upon which the Council is being briefed may well argue that their right to participate at briefings, as at other types of meetings, goes beyond the right to attend and extends to the making of interventions.
Participation at private meetings is also an issue. Since its inception the Council has, when discussing substantive matters relating to its responsibility for the maintenance of peace and security, made only sparing use of private meetings.(10) However, beginning in 1991 and continuing in 1999 the Council began to resort more frequently to private meetings. For instance, the briefing provided by the UN Administrator in Kosovo and the Commander of KFOR on 6 March 2000 took place at a private meeting.(11) The Council invited the representatives of some 50 non-members, among them the representative of the FRY, to participate in the meeting. In this case the right to participate, as with "open briefings," did not extend to the right to speak.
Such private meetings at which the Council is briefed are in practice essentially open to all member states that wish to attend. In a second category are those private meetings where only countries whose interests the Council considers to be specially affected, such as the parties to a dispute, are permitted to attend and may speak. For example, at the 4132nd meeting, held in private on 25 April 2000 concerning the situation in the Democratic Republic of the Congo, the Council invited the representative of the DRC to participate.
As master of its own procedure the Council is well placed to react quickly and to innovate when necessary to adapt its internal procedures to changing circumstances. However, the broader membership of the United Nations is also exerting pressure on the members of the Council to ensure that its practice on participation conforms to the Charter.
About the Author:
Friedrich Soltau is Associate Political Affairs Officer in the Security Council Practices and Charter Research Branch, Department of Political Affairs, United Nations, New York. He is a former lecturer in law at the University of Cape Town.
The views expressed are in the author's personal capacity and do not represent those of the United Nations or any of it organs.
Endnotes:
1. UN Doc. A/47/485, annex, dated 29 September 1992.
2. See Repertoire of the Practice of the Security Council, SupplementSupplement 1985-1988, p. 55. See also Bailey & Daws, The Procedure of the Security Council 156 (3rd ed 1998). 1981-1985, p. 49;
3. The 4164th meeting on 23 June 2000. China, Namibia, the Russian Federation and Ukraine voted in favour of inviting the representative of the FRY, while Argentina, Bangladesh, Canada, France, Malaysia, Mali, Netherlands, Tunisia, the United Kingdom, the United States voted against, and Jamaica abstained.
4. Recommendations to the General Assembly regarding the appointment of the Secretary-General are discussed and decided at private meetings (rule 48).
5. At the 4087th meeting the Council adopted the agenda item "The situation in Africa: The impact of AIDS on peace and security in Africa", invited 26 representatives of non-member states as well as the President of the World Bank, the Administrator of the United Nations Development Fund, and the Executive Director of the United Nations Programme on HIV/AIDS.
6. See Presidential Note S/1998/1016 of 30 October 1998.
7. See for instance the 3957th meeting held on 18 December 1998, at which the Under-Secretary-General for Peace-Keeping Operations briefed the Council on the situation in Sierra Leone.
8. 4165th meeting, held on 27 June 2000. The countries invited to participate were Australia, Brazil, Indonesia, Japan, New Zealand, Norway, Portugal, and the Republic of Korea.
9. 4117th meeting, provisional verbatim record, p. 16.
10. Thus between 1970 and 1998 the Council held only 4 private meetings on substantive issues.
11. 4108th meeting. Countries such as Germany have argued for greater rights of participation at such meetings on the grounds that they are 'specially affected'. See for instance letter dated 3 March from the Permanent Representative of Germany, requesting participation under rule 37 at the briefing to be given on the situation in Kosovo at the 4108th meeting.