Updated on 31 October 2020

Chapter 5:   CONDUCT OF MEETINGS AND PARTICIPATION

Section 2:   Individuals invited to participate in Council proceedings

 

Rare rule 39 vote on inviting a briefer highlights question of how procedural votes are formulated

 

On 5 October 2020, the Security Council convened a meeting on chemical weapons in Syria (S/PV. 8764).  At the outset, the agenda was adopted and representatives of Syria and Turkey were invited to participate in the meeting pursuant to rule 37.  The Council President (Russian Federation) then proceeded to the question of extending invitations to individuals to participate pursuant to rule 39, which reads:

 

“The Security Council may invite members of the Secretariat or other persons, whom it considers competent for the purpose, to supply it with information or to give other assistance in examining matters within its competence.”

 

In addition to the UN High Representative for Disarmament Affairs, a habitual briefer on this topic, the President also proposed inviting José Bustani, Director General of the Organization for the Prohibition of Chemical Weapons from 1997 to 2002. 

 

Immediately, the representative of the United Kingdom took the floor (also on behalf of Belgium, Estonia, France, Germany, and the United States) to object to the latter proposed invitation on the grounds that Bustani had departed the OPCW “many years before it considered the Syria chemical weapons file” and therefore was “not in a position to provide relevant knowledge or information on the implementation of resolution 2118 (2013)”.  Accordingly, the United Kingdom representative requested “that the presidency put the issue of its proposed briefer to a procedural vote.”  (Subsequently, the representatives of France and Germany also voiced support for proceeding in this manner.) 

 

In response, the Chinese representative defended the invitation in light of Bustani’s “rich experience, unique insights and knowledge of the working methods and procedures of the OPCW”.  He then proposed “that we take a procedural vote on the proposal put forward by the representative of the United Kingdom so that we know how many members really oppose the invitation”.  He clarified this as meaning that the Council “should first put to the vote the challenge to the presidency of the Council raised by the representative of the United Kingdom.”

 

Thus on the table were two alternative ways of approaching the requested procedural vote:  1) Putting the invitation itself to a vote, as advocated by the United Kingdom, France and Germany; or 2) Putting support for the objection to the vote, as advocated by China.

 

The President presented the two options to the Council members as having equal merit, but in fact, only the first approach – putting the invitation itself to a vote – was the valid one.  The reason is that under rule 39, as quoted above, it is a decision by the Council to extend an invitation pursuant to that rule.  And Article 27, paragraph 2 of the Charter makes clear that procedural decisions require affirmative votes:

 

“Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.”

 

As reflected in his statements during the meeting and at the press stakeout afterwards, it appears the Russian representative mistakenly believed that had he chosen to exercise it, as President he had the right to rule as to how the procedural vote should be formulated.  As noted in the book (page 287), rulings by the President have in the past been deemed in order when the President has reminded members of the customary practice of the Council or when the Council is “dealing with issues of procedure not expressly covered by the Rules or by precedent”.  Thus a ruling by the President would not have been appropriate in the case of the proposed Bustani invitation since, as mentioned above, extending an invitation to an individual as an affirmative decision of the Council is expressly covered in rule 39, and because Article 27(2) clearly sets out the basis on which such a decision is to be voted upon in the event a procedural vote is requested.

 

After considerable discussion, the President put the matter to a vote using the procedurally correct formulation.  The proposal to invite Bustani to brief received three votes in favour (China, Russian Federation, South Africa); six against (Belgium, Estonia, France, Germany, United Kingdom, United States); and six abstaining (Dominican Republic, Indonesia, Niger, Saint Vincent and the Grenadines, Tunisia, Viet Nam).  The invitation was therefore not extended.[1]

 

Politically, the Russian representative made the point that never before had an individual proposed as a briefer by a Council President been denied the opportunity to speak to the Council.  This is technically correct. 

 

However, in a case raised by the German representative during the 5 October meeting (and discussed in a related article on this website), in March 2018, the Russian representative stated his opposition to the Council hearing a briefing by the UN High Commissioner for Human Rights at a meeting to be held on Syria as proposed by France and supported by six other members, including the Netherlands, that month’s Council President.  Because the meeting was convened only for the purpose of hearing the High Commissioner, with no other briefers proposed, the Russian representative at the outset raised his objection to the adoption of the agenda, rather than allowing the agenda to be adopted and then raising objection at the moment the President proposed extending the invitation.  In the procedural vote that followed, the votes in favour of holding the meeting fell short, by just one, of the required minimum of nine.[2] 

 

Over the Council’s history, on occasion opposition has been voiced to other rule 39 invitations but without the objectors then calling for a procedural vote.  In fact, procedural votes which have led to rejecting invitations proposed explicitly pursuant to rule 39 have occurred on only two occasions prior to the 5 October 2020 case[3]:

 

•   At a 2018 meeting on Ukraine, the Russian representative proposed inviting Elena Kravchenko to participate pursuant to rule 39.  The Swedish representative (also on behalf of France, the Netherlands, Poland, the United Kingdom and the United States) raised objection on grounds that allowing “the participation of a representative of an illegal separatist entity in a Council meeting would set a dangerous precedent.”  The Russian representative countered that Kravchenko was qualified to provide “complete information on the true state of affairs in Ukraine.”  In the procedural vote which followed, only the Russian Federation voted in favour of the invitation; seven Council members voted against and seven abstained.  The invitation therefore was not extended.  (S/PV.8386)[4]

 

•   At a 1981 meeting on Namibia, the Security Council had before it a request from France, the United Kingdom and the United States to extend an invitation to a representative of the Democratic Turnhalle Alliance (DTA).  The three Council members contended that in light of forthcoming elections in Namibia, it would be appropriate for the Council to hear from “any of the Namibian political parties”.  Panama, Uganda and the Soviet Union voiced opposition to the proposal.  In the words of the Ugandan representative, “It would be extremely odd for the Council . . . to give some semblance of recognition to the elements which constitute the forces that are illegally occupying the Territory of Namibia”.  In the procedural vote which followed, only six members voted in favour of the invitation and it therefore was not extended.  (S/PV.2267)

 

(This update supplements pages 251-256 of the book.)

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[1] At the 5 October 2020 meeting, after the invitation to Bustani was rejected, the Russian representative read out Bustani’s intended remarks as part of his own national statement.  This was denounced by later speakers, notably the French representative, who stated his “profound regret” that the Russian representative “decided to ignore a democratic vote of the Council …  The fact you did not like the result of the voting does not authorize you to abuse your role as President.”  In response, the Russian representative said, “I would ask the representative of France to abstain from making recommendations on what I can include in my national statement and what not.”

[2] Affirmative votes were cast by France, Kuwait, the Netherlands, Peru, Poland, Sweden, the United Kingdom and the United States.  Bolivia, China, Kazakhstan and the Russian Federation voted against, while abstentions were entered by the three African Council members – Côte d’Ivoire, Equatorial Guinea, and Ethiopia. 

[3] Historically, proposed invitations to Palestinian representatives, at the insistence of the United States, have avoided citation either of rule 37 or rule 39 (see pp. 256-259 of the book).  Similarly, during a period when the status of the Federal Republic of Yugoslavia was in question at the UN, the Security Council was careful to make clear that invitations extended to its representative were without reference to either rule 37 or rule 39 (see, for example, a 2000 meeting at which an invitation to the FRY representative was put to a procedural vote and rejected (S/PV.4164 and pp. 250-251 of the book).)

[4] Similarly, at a 2018 meeting convened solely to hear a briefing by the Chair of the fact-finding mission on Myanmar, the Chinese and Russian representatives raised objections at the point of adoption of the agenda.  In the subsequent procedural vote, the necessary nine Council members voted in favour of adopting the agenda and the invitation to the Chair was then extended.