Chapter 4:   THE COUNCIL CONVENES

Section 2:   Rejection of items

 

20 May 2019 meeting on Ukraine, requested by Russia, raises complex procedural issues

 

On 20 May 2019, a Security Council meeting on Ukraine, requested by the Russian Federation, failed to go forward after a procedural vote in which only five Council members supported its convening.[1] 

 

One working day before, the Russian representative wrote to the Council President (Indonesia) asking for the meeting in “light of the adoption by the Parliament of Ukraine of a law on ‘the functioning of Ukrainian as the state language’”.  This law, he contended, “directly violates the spirit and letter of the Package of Measures for the Implementation of the Minsk Agreements … endorsed by the Security Council in its resolution 2202 (2015)”.  The letter requested that the meeting take place on 20 May with specified briefers (S/2019/408).

 

After receiving the letter, the President carried out informal consultations among the Council members, during which six proposed that the meeting be postponed to a later date.[2]  This was principally because 20 May coincided with the inauguration of Ukraine’s new President.  In addition, some members said they had not been given sufficient time to study the law.

 

After his consultations, the President convened the meeting on the date requested by the Russian Federation, but as soon as the meeting opened, the representatives of France, Germany, the United States and Poland took the floor to object to its going forward.  The American representative charged that it was “a clear attempt to distract from the peaceful democratic transfer of power” in Ukraine.  The United Kingdom representative similarly affirmed that it was “clearly intended to make life difficult for the new President”.

 

After the Russian representative spoke in defense of his request, owing to the opposition expressed at the outset of the meeting, the President conducted a procedural vote.  Five Council members voted in favour (China, Dominican Republic, Equatorial Guinea, Russian Federation, South Africa); six voted against (Belgium, France, Germany, Poland, United Kingdom, United States); and four abstained (Côte d’Ivoire, Indonesia, Kuwait, Peru).  The agenda having failed to attain the required minimum of nine votes, the meeting could not be formally convened. 

 

Nonetheless, before the meeting adjourned, several Council members – Russian Federation, Belgium, China, South Africa, Germany, Poland and Indonesia – asked for the floor.  In their respective remarks, two important procedural questions were debated:

 

1.  Decision by a Council President to convene a meeting when consensus is lacking

 

In his national statement, the Indonesian representative responded to disapproval expressed by several Council members that as President, he had convened the meeting that day.  He explained that in so doing, he had acted in accordance with Rule 2, which states that the President “shall call a meeting of the Security Council at the request of any member of the Security Council.”  In this connection, the book notes that

 

“from actual cases and relevant discussions in the Council during its first decades, it can be concluded that the prevailing interpretation was that the convening of a meeting was mandatory upon receipt of a request pursuant to Rule 2 or Rule 3.” 

 

In the past, when the Council has not convened a formally-requested meeting, it has usually been either because of “a lack of unanimity among Council members to hold the meeting, with no member willing to push the matter to a procedural vote”, or because there was “consensus among the members that convening a meeting as requested would not be advisable at that time” (our emphasis).  In other words, the practice has been that the President will not fail to convene a formally-requested meeting unless all Council members agree that the meeting should not take place.[3] 

 

However, as mentioned above, several Council members – notably Belgium, France, Germany and Poland – suggested that their objection was less about convening a meeting on the language law than about the timing of the meeting.  Relevant to this question is Rule 1 of the Council’s Provisional Rules of Procedure, which provides that “Meetings of the Security Council shall [with the exception of periodic meetings] be held at the call of the President at any time he deems necessary”. 

 

The practice as to how Rule 1 is implemented has been variable.  In the case of most formal requests, unless there has been consensus not to meet, the Council President has called a meeting within a relatively short timeframe.  Yet, in other less frequent cases, there has been a considerable delay.  For example, a related article on this website relates that in 2014, when ten Council members requested the first ever Council meeting on the human rights situation in the Democratic People’s Republic of Korea, the President (Chad) did not convene the meeting until 11 working days after the request was made. 

 

In accordance with well-developed practice, the only constraint placed on the President in this connection is that upon receiving a formal meeting request, he or she is expected to consult with all Council members, as was done by the Indonesian presidency.  Thereafter, Rule 1 clearly accords to the President the discretion to decide on the precise timing. 

 

In the case of the 20 May 2019 meeting, what appears to have determined Indonesia’s course of action was a desire to adhere to a policy of treating uniformly all requests received during its presidency.  At the meeting, the Indonesian representative underscored that convening on that day was consistent with the presidency’s response to requests for other meetings during the month.  After recalling that pursuant to Rule 2 the President “shall call a meeting” at the request of any Council member, he noted that “The President has done so in previous cases, as requested by various members of the Council.”  He was evidently referring to the fact that at the request of some Council members, previously unscheduled meetings on the situation in Idlib, Syria and on Burundi[4] had been added to the May work programme in the requested timeframe. 

 

The need for an equal handling of all requests was also addressed by the Russian representative when he observed that a refusal to have the requested “discussion today would . . . be a gross example of double standards” (our emphasis).

 

The statement by China’s representative shows the difficulties Council members sometimes experience in holding a consistent position as to the criteria for convening meetings.  In expressing support for holding the meeting, that representative noted that the subject “is an item on the Council’s agenda” and that “Russia, as a member of the Security Council, asked for a meeting to be held under this agenda item and proposed a time for the meeting, in line with the rules of procedure.”  Yet in the case of “The situation in the Democratic People’s Republic of Korea,” an item on the Council’s agenda since 2014, China voted against convening meetings requested pursuant to Rule 2 in 2015, 2016 and 2017. 

 

In any event, as evidenced by the 20 May meeting, on some occasions disagreement among Council members as to the appropriate timing for a meeting can only be resolved through a procedural vote.

 

2.   Allowable statements at meetings when the agenda has failed to be adopted

 

At the 20 May meeting, before and after the procedural vote, the Russian representative took the floor three times, speaking for a total of about 19 minutes.  In the midst of his second set of remarks, made after the vote, the Council President interrupted him, saying “I wish to remind Council members to consider limiting their statements to issues of a procedural nature.”  Shortly after the Russian representative resumed speaking, he was interrupted again, this time by the United Kingdom representative, who objected that the Russian representative “is not giving an explanation of vote”, but rather “a substantive intervention on a meeting that is not happening.”  Later, the Polish representative similarly commented that the Russian representative’s statement “pertained to substance and was not an explanation of vote.”

 

Unlike the General Assembly Rules of Procedure, which provide for an “explanation of vote”, the Security Council’s Provisional Rules of Procedure are silent in this regard.  Instead, it has largely been accepted practice in the Council that its members should have leeway to make statements on any aspect of a matter on which a vote is taken, rather than being limited merely to explaining their votes.  This is evidenced by the fact that when calling upon a member in the context of a vote, the Council President uses the terminology of a “statement before the vote” or a “statement after the vote”, rather than an “explanation of vote”. 

 

However, this practice of broad leeway has developed far more with respect to votes on resolutions than procedural votes. Thus, while in the latter cases the terminology used by the President to call on speakers is the same, it has never been definitively determined by the Council whether different criteria should apply in the case of statements made in the context of a procedural vote.  This was evidenced when the Council President, in interrupting the Russian representative, stated that he wished to remind Council members “to consider limiting their statements to issues of a procedural nature” (our emphasis), rather than affirming that such a limitation was a requirement.

 

Nonetheless, over the years there seemingly has been a gentleman’s agreement that Council members taking the floor in the context of a procedural vote on an agenda should speak primarily about the reasons for their support or opposition, particularly after the vote has taken place.  The rationale for this was suggested by the British representative when he asked the President to ensure that the Russian representative “limits his remarks to an explanation of vote and does not give a substantive intervention for a meeting that is not happening” (our emphasis).

 

Ambiguity exists, however, as to the grounds on which a distinction between substance and procedure would be made, and again the Council’s Provisional Rules of Procedure offer no guidance.  In this regard, the Russian representative rhetorically asked his British colleague what were “his criteria for judging whether my statement is substantive or an explanation of vote”, and he then affirmed that he considered it to be an explanation of vote. 

 

Perhaps one obvious criterion is the duration of such a statement.  As set out in paragraph 22 of the Council’s comprehensive note on working methods, S/2017/507,

 

“The Security Council . . . encourages, as a general rule, all participants, both members and non-members of the Council, in Council meetings to deliver their statements in five minutes or less.”

 

Since the five-minute standard is suggested for substantive statements, it would seem that in speaking for 19 minutes – almost four times the suggested limit – the Russian representative surpassed a generally accepted standard for remarks in the context of a procedural vote.  The lengthy Russian statement on 20 May can be contrasted to the statements made on 19 March 2018 at a proposed meeting on Syria which also failed to go forward following a procedural vote.[5]  In that instance, the several statements made after the vote lasted for two minutes or less.  However, the Russian representative had shown a prior proclivity for making lengthy statements in the context of a procedural vote:  On 26 November 2018, after a meeting requested by him on “Maintenance of international peace and security:  Violation of the borders of the Russian Federation” failed to be supported in a procedural vote, he spoke for about 12 minutes, without being interrupted either by the Council President (China) or any other Council member.[6] 

 

Overall, the ideal would be for Council members to try to be as consistent as possible in applying criteria for 1) convening formally-requested meetings, 2) deciding upon their timing, and 3) keeping statements made in the context of procedural votes to reasonable limits – in other words, to observe mutually-respected standards of moderation.  However, absent definitive provisions on these matters, it is likely that future practice will continue to be uneven.

 

(This update supplements pages 201-222 of the book.)

____________________________

[1] S/PV.8529.

[2] See statement by the representative of France at the meeting.

[3] For specific cases of meetings not convened, see pages 201-212 in the book.

[4] The meeting on Burundi, originally scheduled for 28 May, was ultimately postponed to 14 June.

[5] S/PV.8209.

[6] S/PV.8409.