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28 March 2023

Chapter 5:   CONDUCT OF MEETINGS AND PARTICIPATION

Section 2:   Individuals invited to participate in Council proceedings

 

Council’s fourth ever vote under Rule 39 rejects a briefer on Ukraine proposed by Russia

 

On 17 March 2023, the Security Council convened a meeting to take up humanitarian issues relating to Ukraine, including the Black Sea Grain Initiative (S/PV.9286). The meeting had been requested by Ecuador and France, the Council co-penholders for these issues.

 

The meeting proceeded smoothly through initial invitations to several non-Council Member States to participate pursuant to Rule 37 of the Council’s Provisional Rules of Procedure. An invitation was also extended without issue to the UN’s Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator pursuant to Rule 39.

The Council President (Mozambique) then proposed that the Council invite Daria Morozova, also pursuant to Rule 39. Although not mentioned by the President, Ms. Morozova’s title is “Human Rights Ombudsperson of the Donetsk People’s Republic”. As subsequently noted by the representative of the United States, prior to the meeting a number of Council members had expressed serious concerns to the presidency over this proposed invitation. Thus knowing of these concerns, after putting forward the proposed invitation, the President asked whether any Council member would like to comment.

The United States representative immediately requested a procedural vote on Ms. Morozova’s participation. While stressing that the perspectives of civil society briefers were essential for the Council, the American representative outlined an exception for Ms. Morozova because she was “an ombudsperson of the Donetsk People’s Republic”. The American representative recalled that General Assembly resolution ES-11/4 “specifically called on all States and international organizations to not recognize any alteration of the status of the Donetsk region of Ukraine and to refrain from any dealings that might be interpreted as recognizing any such altered status”. Therefore, she argued, it would be inappropriate for the Council to proceed with this invitation since it would “implicitly extend recognition to illegitimate authorities”.

The Russian representative then stated his delegation’s insistence on Ms. Morozova’s participation. Noting that it was Russia who proposed her, he detailed Ms. Morozova’s first-hand experience and affirmed that her observations would give the Council “an overview of the real situation on the ground”. He further argued that “Contrary to the assertions made by Western delegations, members’ support will in no way imply a recognition of any international legal realities whatsoever.”

 

The third Council member to speak on the issue was the representative of Albania. He characterized the proposed invitation as “a desperate attempt to legitimize what can never be legitimized – the invasion and annexation by force of a territory of another sovereign country.” While reaffirming Albania’s commitment to give access to civil society briefers in the Council’s work, he declared that “To allow the participation of an illegal entity in a Council meeting would set a dangerous precedent.”

In light of the comments made, the President then proposed putting the invitation to a procedural vote. Asked by the Russian representative what each vote would signify, the President clarified that

“Those in favour of the proposal to extend an invitation to Ms. Daria Morozova will vote ‘yes’. Those against extending an invitation to Ms. Daria Morozova will vote ‘no’. Those abstaining will abstain.”

This formulation for the vote would seem to be self-evident, since the decision to extend such an invitation must be shown to have the support of at least nine Council members. However, in 2020, during the previous Council meeting at which a procedural vote was requested on a proposed Rule 39 invitation, there was a fair amount of confusion among some Council members as to the correct formulation (see related article on this website).

 

On the issue of Ms. Morozova’s participation, four Council members voted in favour: Brazil, China, Ghana, and the Russian Federation. The eight Council members voting against were Albania, Ecuador, France, Japan, Malta, Switzerland, the United Kingdom, and the United States. There were three abstentions: Gabon, Mozambique, and the United Arab Emirates.

The proposed invitation, having thus failed to receive the necessary minimum of nine affirmative votes, was rejected.

As the meeting continued, of those voting in favour, China, Ghana and the Russian representatives subsequently spoke of their rationales. Of those voting against, Albania, Ecuador and Switzerland did so. None of the members abstaining gave their reasons.

The Russian representative called the rejection of Ms. Morozova “a display of egregious hypocrisy and double standards”. He contrasted the “procedural tricks” of his Western colleagues with the fact that his delegation had not objected when they proposed a briefer for a prior meeting requested by Russia on Russophobia,[1] “even though his so-called briefing was a pack of lies and traditional Western narratives” and “did not contribute constructively to the discussion in any way”.

The representative of China regretted that the Council had to conduct a procedural vote on the invitation and expressed the view that instead the matter should have been resolved “on the basis of consensus reached through patient consultations”. While stressing that China’s “position on the Ukraine issue remains unchanged”, he stated that the Council’s decision on the invitation “should comply with the provisional rules of procedure and be consistent with past practice on inviting briefers in order to avoid giving the impression of double standards”.

The representative of Ghana explained that his delegation had “consistently supported the President’s choice of briefers”, but added that this “in no way impairs our position on the Donbas region being a part of Ukraine”. Emphasizing this point, he stated, “To be clear, Ghana does not recognize the so-called Donetsk People’s Republic, including any person purporting to act in any official capacity on behalf of that entity.”

Of those voting against the invitation, the Swiss representative stressed that “in principle, we welcome the possibility for the Security Council to invite briefers that it considers qualified under rule 39.” However, Switzerland had voted against that day’s proposed invitation because “we believe it is imperative to consider General Assembly resolution ES-11/4”, by which “all States are called upon to refrain from any action or contact that could be interpreted as recognizing a change in the status of the Ukrainian regions declared annexed by Russia.”

The Ecuadorian representative, in clarifying his negative vote, raised an issue which was referred to by some other Council members as well. Reportedly, in private discussions prior to the meeting, Council members had considered if it would make a difference whether Ms. Morozova were invited in her institutional capacity as DPR Ombudsperson, or in her personal capacity. It will be noted that in speaking in support of inviting her, the Russian representative had said that his proposal was “that she be heard in her personal capacity as a humanitarian activist.”

In this connection, the Ecuadorian representative explained that his negative vote was “based on the original request of the Russian Federation to have her participate in an institutional capacity on behalf of a self-declared people’s republic that my country does not and will never recognize.”[2] This issue had also been raised by the US representative before the procedural vote when she stated that proposing to invite Ms. Morozova was “a blatant and transparent attempt to have the Council appear to legitimize the Russian Federation’s illegal attempt at annexation and to implicitly extend recognition to illegitimate authorities”, a fact not altered by “[s]imply removing references to their positions or titles”.

On the other hand, the distinction that Ms. Morozova would be invited in her personal, rather than institutional, capacity appeared to be significant for Ghana, whose representative affirmed that “her personal views as a citizen of Ukraine should be admitted by the Council” (our emphasis).

 

While the question of whether Ms. Morozova would be briefing in a personal or institutional capacity was relevant to some Council members, it is important to note that this distinction is of a political nature, not a legal one. Rule 39 makes no distinction on this point. It does not mention any criteria other than that a proposed individual be “competent”. The rule reads in full:

 

“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.”

 

Although not directly relevant to the case of Ms. Morozova, it should also be noted that Rule 39 makes no distinction between a “briefer”, decided upon by the Council, and any other individuals, such as representatives of regional organizations, invited to make statements at Council meetings upon their own request.

 

Reportedly during prior private discussions on the proposed Morozova invitation, the parallel to Kosovo was raised by the Russian representative. And at the 17 March meeting he stated, “Our United States colleague said that hearing briefers from unrecognized territories is unacceptable and constitutes a violation of Council resolutions. However, in that case, inviting representatives of Kosovo to the Council, for example, constitutes a clear violation of Security Council resolution 1244 (1999).” For her part, the US representative was evidently giving her view as to whether the practice on participation by Kosovo representatives was relevant to the proposed Morozova invitation when she declared that “Council members can and should draw their own conclusions about any attempts to draw reductionist parallels to other incomparable situations.” (our emphasis)

The case of Kosovo representatives’ participation in Council meetings is a complex one (see the book, pages 253-255). Initially, the Secretary-General’s Special Representative spoke on behalf of Kosovo at Council meetings, which the Russian Federation and Serbia insisted was required by resolution 1244 (1999). But since 2007, and without formal challenge by Russia, invitations under Rule 39 have regularly been extended to representatives of Kosovo merely in their names, without identifying them as Kosovo officials. As the book notes (page 253),

 

“Rule 39 has sometimes been invoked to invite the participation of representatives of entities claiming, or aspiring to, statehood which have not been admitted to UN membership. These have included representatives of the Turkish-Cypriot community, representatives of Kosovo, and representatives of South Sudan prior to its independence.”

 

In this connection, it should again be noted that whether or not an affiliation is announced by the Council President in extending Rule 39 invitations is a political, rather than a legal, distinction.

 

The Russian representative seemed to imply that his delegation might thereafter reconsider its stance on Kosovo participation. After the issue of Kosovo had been raised, he stated that in light of the US claim that the Morozova invitation would violate Council resolutions, “We will take our American colleagues’ principled position on the matter into consideration”. However, the practice of inviting Kosovo representatives under Rule 39 now having been in effect for sixteen years, it is unlikely that this practice will now be reversed.

It remains to be seen to what extent the procedural vote on 17 March will have repercussions for future invitations under Rule 39 generally. The Russian representative openly stated that “What has happened today with Ms. Morozova is reason for us to think about how we should consider our colleagues’ requests under rule 39 in future.” Proposed invitations to briefers have already been coming under increased scrutiny after several briefers have seemed to stray from accepted standards of decorum in the Council Chamber, or have appeared to some to be overly partisan. It is possible that even more opposition will be expressed toward certain proposed briefers from now on.

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

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[1] S/PV.9280 of 14 March 2023.

[2] In explaining his vote, also the Ecuadorian representative stated that it “facilitated the implementation of General Assembly resolution ES-11/4” and was “without prejudice to our position of openness towards the inclusion of diverse speakers from interested delegations, regardless of their origin or political position and, of course, from whatever territory under full or partial occupation.”

 

 

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