25 August 2022
Chapter 5: CONDUCT OF MEETINGS AND PARTICIPATION
Section 1: States invited to participate in Council proceedings
Russian objection to Ukrainian President Zelenskyy briefing via VTC fails in procedural vote
On 24 August 2022, at the request of Albania, France, Ireland, Norway, the United Kingdom and the United States, the Security Council convened a meeting on “Maintenance of peace and security of Ukraine”. After adoption of the agenda, the Council President (China) stated that he had received a letter from Ukraine requesting that President Zelenskyy be invited to address the Council via video-teleconference (VTC).
The Russian representative then took the floor to object. He twice clarified that his objection was not to Mr. Zelenskyy’s participation in the meeting, but only to this participation being via VTC. Referring to the Council’s Provisional Rules of Procedure, the representative maintained that non-Council Member States invited to address the Council at in-person meetings in accordance with Rule 37 must be physically present in the Chamber. He stated that when Mr. Zelenskyy had addressed the Council via VTC in April and June 2022, under the respective United Kingdom and Albania presidencies, these instances had been presented as exceptions not creating a precedent. To accept a third such request could no longer be considered an exception. Further, he noted that Mr. Zelenskyy was listed as Ukraine’s head of delegation for the General Assembly in September. Because this would necessitate his presence in New York, it evidenced the President’s ability to travel. Recalling that in recent instances high-ranking officials of some other non-Council Member States had not been allowed to participate via VTC, the Russian representative said his delegation could not agree to the Council’s following a double standard with respect to President Zelenskyy. He therefore called for a procedural vote.
Speaking in support of Mr. Zelenskyy’s participation via VTC, the representative of Albania took a different position as to the “exceptional” nature of the request. In his view, such participation was warranted because the situation in the Ukrainian President’s country was exceptional. The representative stated that the justification for Mr. Zelenskyy’s VTC participation remained the same as before, i.e., that the Council could not reasonably demand that he leave his country while it was under foreign invasion, a circumstance beyond his control.
In the procedural vote that followed, thirteen Council members voted in favour of allowing Mr. Zelenskyy to participate in the meeting via VTC. The Russian Federation voted against, and China abstained.
Following briefings by the UN Secretary-General and the Under-Secretary-General for Political and Peacebuilding Affairs, the Ukrainian President addressed the Council. At some points during Mr. Zelenskyy’s statement, the sound quality of the VTC transmission was flawed, a fact that the Russian representative commented upon in his later intervention. He noted that his objection to VTC participation was also because the Council should seek to avoid just this type of technical difficulties (S/PV.9115).
In their arguments prior to the procedural vote, both the Russian and the Albanian representatives referred to several letters which had been published on the subject of President Zelenskyy’s earlier VTC participation in April and June 2022. A summary of these letters appears at the end of this article.
On several occasions, the Russian representative, referring to the Council’s Provisional Rules of Procedure, has stated in particular that non-Council Member States invited under Rule 37 to participate in official Council meetings must do so in person. In this connection, it is important to avoid a false conclusion that in-person participation is a requirement set out in the Provisional Rules of Procedure. To the contrary, the Rules remain completely silent on this issue. Rather, Rule 37, which governs non-Council Member States’ participation, sets out only two requirements: 1) that such invitations shall be extended “as the result of a decision of the Security Council"; and 2) that States so invited shall participate “without vote”.*
One working method technicality is relevant to the question of Mr. Zelenskyy’s VTC participation in Council meetings. Each of the meetings held in April, June and August 2022 at which he addressed the Council via VTC were convened under the “Briefing” format. And as detailed in paragraph 21(1)(c) of the Council’s presidential note S/2017/507, at meetings convened under this format “briefings are conducted, and Council members may deliver statements following briefings”. No provision is specifically made for the participation of non-Council Member States in meetings held under this format. Accordingly, as has been the Council’s practice since 2010, a non-Council Member State can be invited by the Council to participate in a “Briefing” meeting only if it is considered to be a “briefer” within the terms of S/2017/507. And ever since the first instance of VTC participation in 2009, it has been the Council’s established practice that “briefers” may address the Council remotely. Thus it could be argued, albeit on a highly technical basis, that each time the Council invites Mr. Zelenskyy to participate in a meeting held under the “Briefing” format, he would automatically be entitled to do so via VTC as a matter of established practice. This automaticity would not apply, however, to a meeting held under the format of “Debate” or “Open Debate”, as described in the same presidential note.
If President Zelenskyy does in fact come to New York in September 2022 for the General Assembly, it is likely that a Security Council meeting on Ukraine will be held during the same timeframe under the French presidency for that month. This would enable Mr. Zelenskyy to address the Council in person, thus avoiding another procedural battle over his participation via VTC. If he does not come to New York in September, the issue of remote participation might arise again that month. It remains to be seen whether the issue might further arise during the remaining Council presidencies for 2022 – Gabon in October, Ghana in November, and India in December.
The procedural vote on 24 August 2022 over Mr. Zelenskyy’s VTC participation marks the twentieth procedural vote since 2000, and the seventh vote on matters relating to some aspect of extending invitations to participate in Council meetings (see related article on this website). This suggests that while the main procedural disagreements continue to be over whether or not to convene a particular meeting, in recent years some Council members have been taking a closer look at the participation of briefers and non-Council Member States.
Letters on Mr. Zelenskyy’s VTC participation in earlier Council meetings:
In a letter dated 5 April 2022 (S/2022/292), the Russian representative stated that the decision by the United Kingdom presidency to grant Mr. Zelenskyy’s virtual participation in a Council meeting “runs contrary to the established practice” and the principle that “all Member States invited to address the Council in accordance with rule 37 should do this in person.” He underlined that Mr. Zelenskyy’s virtual participation “should not be viewed as a precedent for the future work of the Council.”
In response, the representative of the United Kingdom, in a letter dated 11 April 2022 (S/2022/309) noted that her presidency had explained in advance the exceptional nature of President Zelenskyy’s VTC participation “on the basis that he was unable to travel to New York given the circumstances in Ukraine.” This, she stated, was “in line with precedent and, on the basis of our consultations across the Council, there was broad support for his participation.”
The Russian representative returned to this issue in a subsequent letter dated 14 April 2022 (S/2022/320) in which he stated that Mr. Zelenskyy’s VTC participation that month was “a clear breach of the Council’s provisional rules of procedure”. Taken together with other decisions by the United Kingdom presidency relating to meeting on Ukraine, the Russian representative called it “extremely deplorable that, instead of admitting these four clear cases of abuse,” the United Kingdom delegation preferred “to strike a defiant tone and to pretend that no serious incident occurred.”
On 29 June 2022, the Russian representative wrote a letter (S/2022/528) with respect to a meeting convened on Ukraine on 28 June. Inter alia, he complained that once again, this time under Albania’s June presidency, President Zelenskyy had been allowed to address the Council via VTC, ignoring “the principle that all Member States invited to address the Council in accordance with rule 37 should do so in person”. The Russian representative contended that under the Albanian presidency (and prior presidencies), VTC participation was denied to other non-Council Member States. This demonstrated that “Albania exploited its prerogatives as President in a biased manner.” He repeated his assertion that Mr. Zelenskyy’s virtual participation “should not be viewed as a precedent”.
By letter dated 18 July 2022 (S/2022/565), the Albanian representative replied that granting President Zelenskyy the right to participate via VTC “when his country remains under invasion, with the capital, Kyiv, under missile shelling only a day prior to the meeting, cannot, by any reasonable standard, be called biased or selective.” As to the rejection of requests for officials of other non-Council Member States to address the Council via VTC, he gave the nuanced rebuttal that his presidency “had not received during that month any request from any other country under similar circumstances” (our emphasis). In a point similar to the one he made during the August 2022 meeting, the Albanian representative stated that it was “not the request to address the Council via videoconference that grants them exceptional nature, but the real existing conditions that justify such requests, such as being subject to an unprovoked war of aggression.” He recalled that “before taking such a decision, the Albanian presidency consulted across the Council and found wide support for granting President Zelenskyy the possibility of participating via videoconference”. He added that when the “request was approved and gavelled by the Council at the start of the meeting”, neither the Russian Federation nor any other member of the Council “formally objected or called for a procedural vote on the invitation to participate”.
In a letter dated 19 July 2022 (S/2022/567), the United States representative took up several of the complaints made by the Russian representative against the Albanian presidency for its handling of the 28 June meeting on Ukraine. In addition to addressing how the meeting itself had been convened, she stated, “We support Albania’s explanations for its handling of the additional matters that the Russian Federation raises in its letter of 29 June.”
(This update supplements page 174 of the book.)
* Rule 37 reads in full: “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.”