Chapter 5:   CONDUCT OF MEETINGS AND PARTICIPATION

Section 1:   States invited to participate in Council proceedings

 

Turkey complains that blocked from speaking for OIC at 1 June 2018 meeting on Gaza

 

On 1 June 2018, the Security Council convened a public meeting to consider the situation relating to Gaza (S/PV.8274).  Two draft resolutions were put to a vote, and each failed to be adopted. 

 

At the meeting, only two individuals other than Security Council members took the floor.  These were the representative of Israel, invited by the Council to participate pursuant to Rule 37 of the Council’s Provisional Rules of Procedure, and the Permanent Observer of the Observer State of Palestine, invited “in accordance with the provisional rules of procedure and previous practice in this regard.” 

 

That same day, the representative of Turkey transmitted to the Security Council President the statement that his delegation had intended to deliver at the meeting in its capacity as Chair of the Summit of the Organization of Islamic Cooperation.  In his cover letter (S/2018/529), the representative asserted that

 

“It is deeply regrettable that our request to be included on the list of speakers, in accordance with rule 37 of the provisional rules of procedure of the Security Council, was not accommodated owing to the objection of one permanent member[1] of the Council.”

 

The extent to which a non-member of the Security Council is entitled to participate in Council proceedings is a complex question, both procedurally and politically. 

 

In his letter, the Turkish representative argued that preventing a Member State from expressing its position “on an important matter in its region is against the very spirit and letter” of the UN Charter.  It is assumed that his reference was primarily to Article 31 of the Charter, which provides that

 

“Any Member of the United Nations which is not a member of the Security Council may participate, without vote, in the discussion of any question brought before the Security Council whenever the latter considers that the interests of that Member are specially affected.”

 

In addition, participation by a non-member of the Council is addressed by Rule 37 of the Council’s Provisional Rules of Procedure, which states:

 

“Any Member of the United Nations which is not a member of the Security Council may be invited, as the result of a decision of the Security Council, to participate, without vote, in the discussion of any question brought before the Security Council when the Security Council considers that the interests of that Member are specially affected, or when a Member brings a matter to the attention of the Security Council in accordance with Article 35(1) of the Charter.”

 

As set out in the Charter and Rule 37, the “right to access” of non-Council Member States to participate in Council proceedings is not absolute.  Article 31 provides that a non-Council State may participate, and only in the event that the Security Council “considers that the interests of that Member are specially affected.”  Rule 37 states that the participation of a non-Council Member must be the “result of a decision of the Security Council”.

 

This element of conditionality has been underscored in successive Notes by the President on the Council’s working methods.  The comprehensive Note S/2017/507 states that (a) the presence and participation of non-Council members in meetings “should be in accordance with the provisional rules of procedure” and (b) that on “a case-by-case basis, any Member of the United Nations that is not a member of the Security Council, members of the Secretariat and other persons may be invited to participate in the discussion, including for the purpose of giving briefings to the Council, in accordance with rule 37 or 39 of the provisional rules of procedure.” (our emphasis)

 

In addition to Article 31, there is a second Charter article which governs the participation of non-Council Member States in the Council’s discussions.  Article 32 is written in obligatory terms, in that it provides that “a party to a dispute under consideration by the Security Council shall be invited to participate, without vote, in the discussion relating to the dispute” (our emphasis).  However, Article 32 is not relevant to the objection raised by the Turkish representative on 1 June 2018, since he did not claim that Turkey was a party to the matter under consideration that day in the Council.[2] 

 

In the Council’s early years, almost all States requesting to participate pursuant to Rule 37 were parties to the situation or dispute under consideration by the Council.  However, from the 1960s onward, an increasing number of requests to participate have been submitted by States which do not claim to be parties under Article 32.  Rather, such requests are considered as submitted under Article 31, by States affirming implicitly that their interests are “specially affected”.  Such States have included neighbouring countries; countries professing solidarity with one of the parties, sometimes on an ideological basis; and countries engaged in mediation or other relevant initiatives. 

 

As was allegedly the case concerning Turkey’s request to participate in the 1 June 2018 meeting, there have been a number of instances when the Council has rejected requests by non-Council Member States to participate.[3]  In recent years, when the Council has rejected such requests, it has tended to do so informally, rather than during a meeting.  Accordingly, the evidence of rejections is now found mainly in communications written by requesting States, such as Turkey’s letter of 1 June 2018.  Moreover, the Council rarely communicates the basis on which a request to participate has been rejected. 

 

As noted above, from a legal perspective, Article 31 and Rule 37 permit the Council to reject a request to participate, since the language used in both is not mandatory.  The word “discussion”, as used in Article 31 and Rule 37, provides the Council with additional leeway.  Many have considered “discussion” in this context to be synonymous with the word “meeting”.  However, “discussion” has also been interpreted to mean something closer to “consideration”, such that while a non-Council Member State may be invited to participate over the course of the Council’s ongoing discussion relating to a matter on its agenda, the Council may decide that it is not necessary for the State to participate in every meeting held as part of that discussion.

 

The reasons for rejecting a request to participate are more often political, rather than legal.  As noted in the book, the Council may decline a request from only one of the parties, so as to avoid a one-sided airing of the issues.  Council members have also been wary when an invitation to participate might be seen as conferring unwarranted legitimacy on the requestor.  In other cases, the Council has wanted to limit the number of non-member participants so as to keep the focus on the positions of its members.  And admittedly, in other instances, a requestor has been denied the opportunity to speak because of opposition on the part of some Council members to the anticipated message.

 

In addition to requests to participate which have been rejected outright, occasionally one or more Council members have persuaded a non-Council member not to follow up on a request.

 

As in the case of Turkey’s letter of 1 June 2018, there have been a number of instances when a requestor has criticized the Council for not permitting it to participate in a meeting.  Moreover, sometimes such criticism is levelled by Council members themselves.  At a meeting on peacebuilding in October 2007, Council members Italy, France, Panama, and Slovakia expressed regret that not all those who had requested to participate had been invited.

 

With reference to Turkey’s letter, the question arises as to whether opposition by a single Council member is sufficient to reject a request to participate.  An invitation to participate is considered a procedural matter,[4] and thus if brought to a vote, would be agreed by a minimum of nine affirmative votes, the veto not applying.  However, in contemporary practice, such requests are generally dealt with informally by the Council, prior to the meeting, through a consensus procedure.  Accordingly, the opposition of a minimum of one Council member – and it need not be a permanent member – is normally sufficient to block consensus on extending an invitation.  In that case, the request will be rejected unless one or more Council members feel so strongly about an invitation (or the lack thereof) that they are willing to bring the matter to a procedural vote in a formal Council meeting.  Additionally, there have been some instances when the threat by a Council member to request a procedural vote on participation has been sufficient to bring about a grudging consensus to extend the invitation.

 

Procedural votes conducted in the Council Chamber with respect to the participation of non-Council Member States have been rare, and generally have taken place in the context of unusual circumstances.  For example, at a meeting held in June 2000, procedural votes were held in connection with the participation of the then Federal Republic of Yugoslavia.

 

Procedural votes to decide on participation can be conducted either directly or indirectly.  A direct vote occurs when an objection is raised either to a proposal by the Council President to extend an invitation on the Council’s behalf, or to a President’s failure to issue an invitation which is supported by one or more Council members.  In either case, it would then be the proposal to extend the invitation that would be voted upon, rather than the objection raised.

 

An indirect vote occurs when opposition to hearing a representative is so strong that one or more Council members objects altogether to the holding of the meeting at which the representative would speak.  In such cases, the procedural vote would be taken with regard to approving the agenda which, under Rule 9, is the first order of business at a formal Council meeting.  In the event that the agenda received fewer than nine affirmative votes, the meeting would not be held, thereby denying the requestor the occasion to make a statement.  This approach has not been used in recent years with respect to non-Council Member States wishing to participate pursuant to Rule 37.  However, on 19 March 2018, a procedural vote on the adoption of the agenda was held at the initiative of some Council members who did not want the Council to extend an invitation pursuant to Rule 39, which governs the participation of individuals, to enable the UN High Commissioner for Human Rights to brief the Council on Syria.  The agenda having received only eight affirmative votes, the briefing could not be heard in a formal meeting of the Council (see related article on this website).

 

One approach used only rarely in the past has been to invite a non-Council Member State to “participate”, that is, to sit at the Council table or even in a side seat in the Chamber, but without being given the floor to make a statement.  While allowable, this modality has been seen by the requestor as an extreme tactic, and often has been met by outrage (see the book, page 248).  A more recent practice, sometimes used when consensus is not reached to invite a requestor to speak at a formal meeting, has been to offer the non-member an alternative format, such as an informal interactive dialogue, at which to make a statement to Council members that will be off-record.

 

(This update supplements pages 243-249 of the book.)

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[1] Reportedly, the United States was the permanent member which raised the objection.

[2] Article 32 is itself qualified, as pointed out by the International Court of Justice in its 1971 Advisory Opinion on Namibia.  In that Opinion, the Court stated that while the language of Article 32 is mandatory, “the question whether the Security Council must extend an invitation in accordance with that provision depends on whether it has made a determination that the matter under its consideration is in the nature of a dispute.  In the absence of such a determination Article 32 of the Charter does not apply.” 

[3] Some noteworthy earlier cases are described on pages 246-248 of the book.

[4] See the authoritative list contained in the Repertoire of the Practice of the Security Council 1946-51 and 1956-8, Chapter IV, “Voting”, Parts I and II.