The Procedure of the UN Security Council, 4th Edition is available at Oxford University Press in the UK and USA. 

The Procedure of the UN Security Council, 4th Edition

ISBN: 978-0-19-968529-5

FOR INQUIRIES, OR TO RECEIVE NOTICE OF NEW UPDATES, PLEASE CONTACT:   scprocedure@earthlink.net

Stay Connected

© 2019 Loraine Sievers  All RIghts Reserved. Use of contents on this site without our prior written consent is strictly prohibited.

Updated on 12 September 2019

Chapter 1:   THE CONSTITUTIONAL FRAMEWORK

Section 4:   Provisional Rules of Procedure

 

Why are the Council’s Rules of Procedure still ‘Provisional’ and what does that mean in practice?

 

In the debate on Security Council reform, much has been made of the fact that the Council’s Rules of Procedure are still entitled “Provisional”.  This, to some UN Member States, preserves an unnecessary level of uncertainty as to the Rules’ validity.  

 

It is commonly thought that at least some Security Council members wish to retain the word “Provisional” so as to emphasize that the Council remains master of its own procedure under Article 30 of the Charter.  It is not clear to what extent this is actually the case.  The belief, however, has given rise to two significant misunderstandings:

 

1)  If “Provisional” were struck from the title, the Council would then be obligated to follow its Rules of Procedure, as written, without deviation.  This is not the case.  Article 30 makes clear that the Council’s authority to determine its procedures is ongoing.  In addition, the Council has already demonstrated, through seven revisions, that when support among its members is sufficient, it has the authority to add, modify or delete rules at any time.[1]  This would continue to be the case in the event the Rules were formally adopted.  Moreover, the Council would also retain the power to suspend, explicitly or implicitly, any rule whenever there was sufficient agreement to do so. 

 

2)  Because the Rules remain “Provisional”, the Security Council has followed practice of not adhering systematically to them.  This also is not the case.  Other than a number of minor rules which have been implicitly modified or suspended (see a related article on this website), the Council regularly adheres in full to its principal rules despite their “provisional” status.  These include Rule 9 on the agenda; Rule 11 on the Summary Statement of matters of which the Security Council is seized; Rule 18 on the rotation of the Council presidency; Rule 28 on establishing subsidiary organs; Rule 32 on voting order;[2] Rule 35 on the withdrawal of a draft resolution;[2] Rule 37 on the participation in Council meetings of non-Council Member States; Rule 39 on the participation of individuals; Rules 41 and 42 on translation and interpretation, etc.  This is so much the case than in some instances when it has been felt necessary to deviate from some of these principal rules, the Council has published a specific decision to that effect. 

 

For example, there have been two occasions when Rule 18 has been formally suspended, both in connection with the Rwandan genocide of 1994.  During that year, Rwanda was serving as an elected member of the Council.  The atrocities in the country reached a peak in July and for some time Rwanda was not officially represented in New York.  If alphabetical rotation had been followed pursuant to Rule 18, it would have been Rwanda’s turn to serve as Council President in September.  On 25 August, the Council adopted a presidential statement deciding to suspend Rule 18 so that Spain, next in alphabetical order, would serve as President that month instead.[3]  On 16 September, with Rwanda now represented on the Council by a new delegation, the Council adopted a second presidential statement deciding to suspend Rule 18 once again, this time to allow Rwanda to serve as President in December 1994. The PRST provided that thereafter, “the Presidency will again be held as specified in Rule 18”.[4] 

 

Another explicit suspension was decided in 2004, when the Council, in the context of holding official meetings in Nairobi, adopted resolution 1569 (2004), by which it waived the requirement of Rule 49 that verbatim records should be made available the first working day following a meeting.  It decided instead that the records for those meetings away from Headquarters would subsequently be issued in New York.   

 

Despite the common belief that “Provisional” is retained in the title in order to ensure flexibility, the original reason for retaining this word has deeper and specific historical roots.

 

At its first meeting on 17 January 1946, the Council tasked its Committee of Experts with determining the extent to which the Rules of Procedure should elaborate on the Council’s voting procedures.  At the time, some members favoured having the Rules spell out the criteria for determining whether a matter was substantive or procedural, that is, under what circumstances the veto would apply.  Other members believed that this was a matter which could only be worked out through practice over time.  In addition, some members wanted the Rules to elaborate on the Article 27(3) requirement for obligatory abstentions.  A few members also thought the Rules should set out what would happen if a permanent member voluntarily abstained on a substantive vote, a scenario not addressed by Article 27(3).  

 

After the Committee of Experts failed to reach agreement on these points, on 13 May 1946 the Council decided to postpone study of the questions and thus the Rules remained provisional.  With respect to voting, the Council adopted, as an interim measure, a non-committal rule which merely states:  “Voting in the Security Council shall be in accordance with the relevant Articles of the Charter and of the Statute of the International Court of Justice.”  (Rule 40)

 

In the months, and then years, that followed, the divisions – particularly among the permanent members – as to the parameters of the veto and other voting matters only intensified, making it even more difficult to envisage reaching agreement on specific rules governing them.  This exacerbated sensitivities with respect to the Rules as a whole, such that they were revisited by the Council only when absolutely necessary.[5]

 

The more recent changes to the Rules involved the expansion of the Council’s working languages.  Russian and Spanish were added in 1969, Chinese in 1974, and Arabic in 1982, with each addition entailing revision of Rules 41 and 42 and the eventual deletion of Rule 43 (see related article on this website).  Since the amendment of the Rules in 1982 to provide for the use of Arabic, no further formal amendments have been adopted.  Thus, the present version of the Provisional Rules of Procedure remains the one issued in 1982 under the symbol S/96/Rev. 7.

  

Because of the lesser rules which are now partially or wholly in abeyance, it would not be possible today merely to strike the word “Provisional” from the face of the Council’s Rules of Procedure.  Rather, the Rules would first need to be studied to determine which are still valid and which are not. 

 

Given the fact that the Security Council is a politicized body, it is likely any attempt to redraft the Rules to make them fully contemporary and no longer “provisional” would be highly divisive.  In fact, Council members were so reluctant to reopen the Rules in 1993 – when they decided that verbatim records would no longer go through a review process but would instead be “issued in final form only” – that this change was made not to the Rules themselves, but rather was set out in a Note by the President.[6]

 

Nonetheless, it would be well for there to be clarity as to which rules remain fully valid, as distinct from those which have been implicitly or informally modified or suspended.  To that end, a companion article on this website identifies the rules in the latter category.

 

(This update supplements pages 9-12, 296 and 671 of the book.)

___________________________

[1] This is also true for the General Assembly, whose Rules of Procedure are officially adopted.

[2] See related article on this website.

[3] S/PRST/1994/48.

[4] S/PRST/1994/55.

[5] Rule 61 was added in 1947 to deal with a previously unanticipated voting pattern which could arise when the Council, simultaneously with the General Assembly, elects judges of the International Court of Justice.  Rules 58 and 60, relating to the interface between the Council, the Secretary-General and the General Assembly with regard to the admission of new UN Member States, were revised in 1947.  Rule 13, regarding credentials, was revised in 1950 in the context of controversy over the seating of China.  

[6] S/26389.