Chapter 4:   THE COUNCIL CONVENES

Section 2:   Rejection of items

 

Two back-to-back 2018 Council meetings highlighted issues of agenda item formulation

 

On 26 November 2018, at the request of the Russian Federation, the Security Council President (China) opened a meeting on events that had occurred the previous day in the Kerch Strait, which connects the Black Sea and the Sea of Azov (S/PV.8409). It had been proposed by the Russian Federation that the meeting be held under the general or “umbrella” item, “Maintenance of international peace and security”, with a sub-item entitled “Violation of the borders of the Russian Federation”.

 

As required by Rule 9 of the Council’s Provisional Rules of Procedure, as the first order of business, the Council President presented the proposed agenda for adoption. The representative of the United States immediately asked for the floor to state, on behalf also of the Netherlands, Poland, Sweden and the United Kingdom, opposition to that agenda formulation. Referring to the previous day’s incident, she said, “We look forward to discussing Russia’s provocation under the appropriate agenda item. We therefore urge all Council members to vote against the adoption of the agenda as proposed by Russia.” (our emphasis)

 

In response, the Russian representative referred to a “counter-demand” by Ukraine that the Council “initiate a separate meeting under a different agenda item”, apparently referring to the agenda item “Letter dated 28 February 2014 from the Permanent Representative of Ukraine to the United Nations addressed to the President of the Security Council (S/2014/136)”. This Ukraine letter has been one of the two agenda items used by the Council when it has subsequently met on issues relating to that immediate region. The other, parallel agenda item for some such meetings has been “Letter dated 13 April 2014 from the Permanent Representative of the Russian Federation to the United Nations addressed to the President of the Security Council (S/2014/264)”.

 

At the 16 November 2018 meeting, the Russian representative contended that meeting on the matter at issue under the 2014 Ukraine letter would be “inappropriate”, because the “situation described in it refers us to events of four years ago and has nothing to do with what happened in the region yesterday.” In its 2014 letter, Ukraine had stated that it was requesting a Council meeting owing to “the deterioration of the situation in the Autonomous Republic of the Crimea, Ukraine, which threatens the territorial integrity of Ukraine”.

 

The position expressed by the Russian representative raises the interesting question of how much “drift” is allowable with respect to agenda items originally adopted to address a specific situation.

 

In fact, the Council has in certain instances allowed marked flexibility. For example, the agenda item “The situation in Myanmar” was first used in 2006 when the Council met in response to a request by the United States for a briefing on the Secretary-General’s good offices mission to that country with respect to the treatment of opposition figures of that time, notably Aung San Suu Kyi.[1] Then, beginning in 2017, the agenda item was used for meetings and outcomes relating to Rakhine. And as of 2021, the Council has considered the military takeover in Myanmar under the same agenda item.

 

Another example is the agenda item, “The situation between Iraq and Kuwait”, first used by the Council to take up Iraq’s invasion of Kuwait in 1990. After the 2003 coalition action in Iraq which led to the deposing of Saddam Hussein, the Council addressed peacebuilding issues relating solely to that country under the Iraq-Kuwait agenda item for two years until, in 2005, it issued a presidential note stating that

 

“. . . concerning the formulation of the title of the agenda item for issues pertaining to Iraq, members of the Security Council reached agreement as follows: Issues relating to the return of all Kuwaiti property, the repatriation or return of all Kuwaiti and third-country nationals or their remains, and the United Nations Compensation Commission would be considered under the agenda item entitled ‘The situation between Iraq and Kuwait’. Other issues that did not fall under this category would be considered under the agenda item entitled ‘The situation concerning Iraq’.”

 

Thus it can be seen that, either purposely or inadvertently, the Security Council has occasionally allowed considerable leeway for new fact situations to be taken up under older agenda items originally adopted in other contexts.

 

Interestingly, one year after the meeting requested on the Kerch Strait incident described above, on 20 May 2019, the Russian Federation requested that a meeting be held under the agenda item of its 2014 letter. That letter had contained a request for the Council to convene a meeting “to consider the alarming developments in Ukraine”, whereas the matter which the Russian Federation wished the Council to take up in 2019 was that year’s “adoption by the Parliament of Ukraine of a law on ‘the functioning of Ukrainian as the state language’”. After a procedural vote, the meeting requested in 2019 did not go forward.[2] However, the opposition expressed related not to the agenda item formulation, but rather to the timing of the meeting.[3]

 

At the 2018 Kerch Strait meeting, after arguments were made on both sides of the question, a procedural vote was taken. The meeting did not go forward because only four members voted in favour, while seven voted against, and four abstained.

 

In a statement after the vote, the Russian representative emphasized his country’s right to raise any issues in the Council “that we consider important, and doing so under agenda items that those issues relate to.” He further criticized those who were “more concerned about which agenda item to hold today’s meeting under than about how to solve the problem. Frankly, this is reminiscent of playground arguments”.

 

After the Russian statement, the meeting ended at 11:30 a.m. Five minutes later, a new meeting was convened on the Kerch Strait incident, this time under the agenda item, “Letter dated 28 February 2014 from the Permanent Representative of Ukraine to the United Nations addressed to the President of the Security Council (S/2014/136)” (S/PV.8410). At this second meeting, the representative of the United Kingdom referred to the issue of the agenda originally proposed by the Russian Federation:

 

“Russia has regularly discussed Ukraine here under a different agenda item. In this instance Russia deliberately chose a provocative title for the meeting, which it knew that it would lose. I ask myself why.”

 

In his statement, the Russian representative said, “we once again feel we were absolutely justified in our proposal to hold a meeting under a different agenda item, since [at the present meeting] people seem to be talking about anything they feel like – annexation, occupation, aggression.”

 

A general guideline on the formulation of agenda items is set out in the Note by the President S/2017/507, paragraph 12 of which states: “The members of the Council recall the desirability, whenever possible, of using descriptive formulations of agenda items at the time of their initial adoption”.

 

In the Council’s early years, items were generally given titles which indicated their substance, such as “The Egyptian question” or “The Czechoslovak question”. However, soon the Council began a parallel practice of adopting agenda items which gave no indication as to the subject matter, but rather referred only to the communication which gave rise to consideration of the matter by the Council. An early example was the item on the situation in Berlin entitled “Identical notifications dated 29 September 1948 from the Governments of the French Republic, the United Kingdom, and the United States of America to the Secretary-General”.

 

This practice became quite common from the 1960s on. It tapered off in the 1990s, but on occasion is still used. In addition to the two Ukraine-related agenda items mentioned above, the Council considers the matter of the Colombia peace agreement under a “Letter from . . .” formulation, and it also used a “Letter from . . .” formulation when it met in connection with the Skripal poisonings in 2018.

 

There are important substantive considerations which the Council has historically kept in mind when deciding upon agenda items relating to divisive issues. Notably, it has been the Council’s practice to try to avoid using an agenda item that would appear to favour one interpretation of the events under consideration over another. In particular, the Council has sought to avoid any agenda item formulation which might be interpreted as an a priori determination of any legal question(s) at issue.

 

Another substantive consideration relates to the Council’s Charter mandate. There has historically been some concern that in taking up a matter explicitly, the Council might appear to be deciding a priori that the matter constitutes a threat to international peace and security. This is of particular concern because a determination by the Council that a matter constitutes “a threat to the peace” is, under Article 39, one of the gateways to the Council’s option of deciding, in a next step, to institute enforcement measures under Chapter VII of the Charter. While virtually all legal commentators categorically reject any interpretation that the adoption of an agenda item can ever amount to a decision by the Council that a matter constitutes a threat to international peace and security, there is still room for misinterpretation by others if an agenda item is not carefully formulated.

 

Because of these considerations, when an agenda item indicates the substance of the matter, it has long been the Council’s standard to seek a reasonably objective formulation. In 1950, after the outbreak of the Korean war, the provisional agenda of the Council had as an item “Aggression upon the Republic of Korea”. On the proposal of the President (India), the item was amended to read “Complaint of aggression upon the Republic of Korea” (our italics). In 1952, when the Soviet Union alleged that the United States had resorted to bacteriological warfare in Korea, the provisional agenda for one meeting included the item, “Appeal to States to accede to and ratify the Geneva Protocol of 1925 for the prohibition of the use of bacterial weapons”. Even this formulation was thought to be insufficiently objective. The United States proposed, and the Council agreed, to preface the item with the words “Question of an”.

 

Injecting a note of humour into a discussion on the formulation of another agenda item, the representative of the United Kingdom once stated that his delegation

 

“has always held that possible items on our agenda ought to be formulated in, so to speak, a neutral and non-tendentious way... [O]therwise, you might get a delegation which, for reasons of its own, would put down an item that would read, for instance, ‘Violation by State X of all the principles of the Charter’, or ‘Horrible behaviour of State Y in connexion with some incident or other’. That would tend to prejudice the discussion of this incident or alleged incident from the start”. (S/PV.577)

 

As described above, the sub-item proposed by the Russian Federation for the first Kerch Strait meeting in 2018 – “Violation of the borders of the Russian Federation” – would seem inconsistent with the Council’s practice of avoiding agenda items that might appear to be an a priori determination of the legal question(s) at issue in a matter to be taken up. This point, however, was not directly raised by any of the Council members who objected to holding the meeting under the proposed agenda item. Rather, the reasons given for objecting were no more specific than the comment by the representative of the United Kingdom that it was “a provocative title”.

 

(This update supplements pages 217-221 of the book.)

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[1] The meeting was held after a procedural vote in which 10 Council members voted in favour; four voted against; and one abstained.

[2] Only five Council members voted in favour; while six voted against and four abstained.

[3] Some Council members argued that the meeting was intended to distract from the inauguration that same day of a new Ukrainian president (for details, see article on this website).