Chapter 5:   CONDUCT OF MEETINGS AND PARTICIPATION

Section 1:   States invited to participate in Council proceedings

 

After procedural vote, Council invites Ukraine to participate in Iran non-proliferation meeting

 

On 6 July 2023, the Security Council met for its biennial consideration of resolution 2231 (2015) regarding Iran’s nuclear programme and the related Joint Comprehensive Plan of Action (JCPOA). Following adoption of the agenda, the Russian representative took the floor on a point of order. He questioned the Council President (United Kingdom) on the proposal to extend an invitation to the representative of Ukraine to participate in the meeting pursuant to Rule 37. In this connection, he pointed out that Ukraine – unlike Iran and Germany, the other two proposed Rule 37 invitees – was not a party to the JCPOA.

 

In response, the United Kingdom representative stated that following receipt of Ukraine’s request to participate, the presidency had consulted all Council members. She added that the presidency had then accepted Ukraine’s request “on the basis that a clear majority of Council members expressed support.”

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Rule 37 reads:

 

"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."

 

Rule 37 thus sets out two criteria for when it would be appropriate for the Security Council to invite a non-Council Member State to participate in its discussion, although these should not be taken as exclusive. The first criterion would be that the Council "considers that the interests of that Member are specially affected", and the second, that a Member has brought a matter to the Council's attention in accordance with Article 35 (1) of the Charter. Because the 6 July 2023 meeting on Iran's nuclear programme was convened according to a fixed cycle set out in presidential note S/2016/44, rather than pursuant to a request by Ukraine, it was natural that those Council members arguing either side of the question focused on whether or not Ukraine's interests were being "specially affected".

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Requesting the floor for a second time, the Russian representative opined that the question of the participation in the meeting of a State which was neither a Council member nor a party to the JCPOA was “far from so routine as the presidency is attempting to portray.” He stated that it had been the Council’s longstanding practice for this file to be discussed only by Council members and parties to the JCPOA, as a “guarantee for a constructive, apolitical discussion”. In this connection, he noted that in the past there had been others, including States from the region, that had wished to participate in Council meetings on the issue, but “each time the Council wisely decided to limit the discussion to those delegations who were directly involved in negotiations around the JCPOA”. The Russian representative charged that the British presidency’s proposal “to break this arrangement” was in order to advance its desire to “Ukraine-ize” even the Council’s most important work. He then requested a procedural vote and called on his fellow Council members to “adopt a responsible approach” to the Council’s discussion of the JCPOA.

 

The United States representative next took the floor to urge Council members to vote to allow Ukraine to participate. He asserted that both Iran and Russia had violated their obligations under resolution 2231 (2015) “by participating in the transfer of UAVs without obtaining advance approval” from the Council. He stated that over recent weeks, the Russian Federation had repeatedly used UAVs in attacks that killed Ukrainian civilians and destroyed Ukrainian public works. Consequently, he argued, it “would be unconscionable to deny Ukraine the opportunity to speak at this meeting when it is experiencing the devastating effects of Iran’s violation of resolution 2231 firsthand”.

  

The United Kingdom representative stated her rejection of the Russian assertion that the discharge of her delegation’s duties as president had been “in any way irregular”. In this connection, she stated that there is “a long-established procedure on the issue of Rule 37 participation, which we have followed.”

 

The proposed invitation was then put to a vote. Twelve Council members voted in favour of Ukraine’s participation in the meeting. China and the Russian Federation voted against, and Mozambique abstained.

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After a lull prior to this millennium, in recent years there has been an upsurge in procedural disagreements which have led to formal procedural votes. Since 2000, there have now been 22 such procedural votes (see related article on this website). Arguably, very few have exclusively centred around differing views as to correct procedure. Rather, most have been closely connected to matters of substance. Tellingly, six of these procedural votes have arisen since 2014 in the context of Ukraine. There have been four procedural votes relating to Syria, and also four regarding the human rights situation in the Democratic People's Republic of Korea. Two procedural votes have occurred with respect to Myanmar.

 

Disputes over participation in Security Council meetings account for six of the 22 procedural votes during this millennium. Of these, the vote on the participation of a non-Council Member State which occurred on 6 July 2023 was the first ever procedural vote specifically related to Rule 37.[1] Three other procedural votes on participation during this period have concerned inviting individuals to brief the Council pursuant to Rule 39. In 2000, two other procedural votes on participation related to the unique arrangements, avoiding Rule 37, for inviting a representative of the Federal Republic of Yugoslavia to participate in a Security Council meeting during a time when the General Assembly, acting on a Council recommendation, had decided that the FRY should apply for membership in the UN, pending which “it shall not participate” in the Assembly’s work.

 

In almost all cases of procedural votes since 2000, the results have been largely predictable beforehand. This suggests that in such cases, the matter at issue might have been resolved in prior consultations. Those proposing a course of action for which insufficient support had become evident could have withdrawn their proposal prior to the meeting, rather than requesting the Council to make evident this lack of support through a procedural vote. Or, those against a proposed course of action, seeing that most Council members supported it, could have decided to forgo calling for a procedural vote, and instead merely expressed their opposition during their national statements.

 

In parallel to the upsurge in procedural votes since 2000, this same time period has seen an increase in Council members bringing to a vote draft resolutions which they know beforehand will be vetoed or receive insufficient votes.[2] This pattern suggests that concerning both procedure and substance, increasingly some Council members wish to trigger a vote in order to place on record stronger, more prominent evidence of their divergent positions, even when they are aware that a majority of Council members will decide in an opposite direction.

 

The question as to whether the United Kingdom, as Council President, acted appropriately in proposing to invite Ukraine is one that touches on an issue as yet not definitively resolved in Security Council practice. It will be recalled that Rule 37 provides that a non-Council Member State "may be invited, as the result of a decision of the Security Council, to

participate . . ." (our emphasis). This makes clear that it is a decision to be taken by the Council members, not the President on his or her own authority. However, especially in recent years, the Council has evidenced a wide range of practice in this regard, including instances when Presidents have extended Rule 37 invitations unilaterally, or denied them, without any consultation with other Council members. In parallel, there have been instances when various Council members have argued that according to an informal understanding, extending Rule 37 invitations requires full consensus, and on that basis have succeeded as a sole objector to block a Rule 37 invitation.

 

In light of this uneven practice, it is relevant that on 6 July 2023, the Council President stated that before the meeting she had consulted all Council members and that it had been “on the basis that a clear majority of Council members expressed support” that she had then put forward Ukraine's request to participate. The subsequent voting in fact evidenced that the invitation was supported by 12 Council members, comfortably more than the nine required by Article 27(2) of the Charter for a procedural decision.

 

Given that the procedural vote on 6 July 2023 was the Council's first ever vote relating to Rule 37, it is possible that this vote will lead to a more defined decision-making process on such invitations from now forward. However, concerning several aspects of Council procedure, some decisions taken informally are commonly resolved on a different basis than that which would govern a decision taken in the Council Chamber. Accordingly, it is equally possible that unless challenged during a Council meeting, some non-Council Member States may continue to be invited by a President under Rule 37 without there being majority support, while other invitations may not be extended because of strong opposition from few, or even one, of the Council members.

 

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

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[1] Prior to 2000, there were a number of procedural votes relating to participation by representatives of authorities claiming to represent States which at the time had not been admitted to UN membership. This included repeated votes on participation by the Palestine Liberation Organization. In addition, at the 1118th meeting, held in 1964 on the complaint by Cambodia, the United States supported a request from the Republic of Viet-Nam for its observer at the UN to participate. A challenge by the Soviet representative led to a procedural vote, in which nine Council members voted in favour of the invitation, with only Czechoslovakia and the Soviet Union voting against.

[2] See related article on this website.