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Security Council Working Methods and Procedure: Recent Developments

Published online by Cambridge University Press:  17 January 2008

Michael C. Wood
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Extract

The Council should not commit itself to procedures which in practice might prove to be excessively rigid, since each dispute with which the Council has to deal has unique characteristics. Attention has been drawn to the danger that any premature formalization of the procedures of the Council might impede the latter in the discharge of its responsibilities under the Charter.1

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 45 , Issue 1 , January 1996 , pp. 150 - 161
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. Report of the Secretary General of 18 Sept. 1952 (A/2170, para.102), cited in the General Introduction to the Repertoire of the Practice of the Security Council 1946–1951 (ST/PSCA/I).

2. S/PV.3483.

3. See Repertoire, supra n.1, and Adds.1–9, which so far covers the years 1946–1984; SydneyBailey, D., The Procedure of the Security Council (2nd edn, 1989)Google Scholar; Herndl, , “Reflections on the Role, Functions and Procedures of the Security Council of the United Nations” (1987–VI) 206 Hag. Rec. 293–395Google Scholar; Hague Academy of International Law, The Development of the Role of the Security Council, Workshop, The Hague, 21–23 July 1992 (published in 1993); and the relevant sections of the commentaries on the Charter: Kelsen, , The Law of the United Nations (1950)Google Scholar; Goodrich, , Hambro, and Simons, , Charter of the United Nations (1969)Google Scholar; Cot, and Pellet, , La Charts des Nations Unies (1985)Google Scholar; Simma, , The Charter of the United Nations. A Commentary (1995).Google Scholar

4. Activity and output are not, of course, measured solely in terms of formal meetings and resolutions: for other statistics see the introduction to Report of the Security Council to the General Assembly (16 June 1994–15 July 1995), (A/50/2) and the table in the Secretary General's Supplement to an Agenda for Peace (A/50/60–S/1995/1), which gives comparative figures for 31 01 1988,31 01 1992 and 16 12 1994.Google Scholar

5. Security Council Res.956(1994) of 10 11 1994.Google Scholar

6. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) Provisional measures. Order of 14 04 1992, I.C J. Rep. 1992, 3. The corresponding order in the case against the US is at I.C.J. Rep. 1992, 114.Google Scholar

7. For the proceedings at the summit meeting see S/PV.3046; for the concluding Presidential statement see S/23500. An Agenda for Peace was published as doc. A/47/277–S/24111. For Council follow-up to An Agenda of Peace see the Presidential statements of 30 06 1992 (S/24210), 29 10 1992 (S/247 28), 30 11 1992 (S/24872), 30 12 1992 (S/25036), 28 01 1993 (S/25184), 26 Feb 1993 (S/25344), 31 03 1993 (S/25493), 30 04 1993 (S/25696) and 28 05 1993 (S/25859), and Res.868(1993) of 29 09 1993 (on the security of UN operations). The Secretary General issued Supplement to an Agenda for Peace (supra n.4) on 3 01 1995, which was discussed at a meeting of the Council on 18 and 19 01 199S (S/PV3492).Google Scholar

8. The main output of the informal working group, which first met in 06 1993 and which now meets most months, may be found in a series of notes by the President of the Security Council (S/26015, S/26176, S/26389, S/26812, S/1994/230, S/1994/898 and S/1995/234). See Report of the Security Council to the General Assembly (16 06 1993–15 06 1994), A/49.2, chap.28. Most of the developments listed at (a) to (I), infra Section B, emerged from the informal working group.Google Scholar

9. There is a distinction between “periodic meetings” called for in Art.28 of the Charter and meetings at ministerial or head of State or government level held other than pursuant to Art.28. In fact, only one “Art.28 meeting” has taken place (21 10 1970). A meeting at the level of Ministers for Foreign Affairs took place on 26 09 1985 (S/PV.2608). A number of Foreign Ministers attended the meeting on 25 09 1991 (S/PV.3009) at which Res.713 (1991) was adopted. The only summit meeting was that on 31 01 1992.Google Scholar See Bailey, , op. cit. supra n.3, at pp.35–40Google Scholar; Murti, “Periodic Meetings of the Security Council: Article 28. paragraph 2 of the UN Charter” (1970) Indian J.Int.L. 283–299; and the commentaries mentioned supra n.3.Google Scholar

10. See Bailey, Idem, pp.141–145: Hague Workshop. supra n.3, at pp.365–374 (Aust).349–363 (Delon). The fear that the five permanent members may unite to impose their will on the rest is nothing new. It was articulated at San Francisco, leading the five to point out that they would not be able to act by themselves, since “any decisions of the Council would have to include the concurring votes of at least two [now four] non-permanent members”: see Bailey, Idem, pp. 108–109.

11. But see Bailey's comment, Idem: “In the aftermath of the Middle East War of 1967, decisions of the Council were sometimes made by written document only … this procedure was resorted to in order to avoid having open meetings of the Council.” And his 1972 example (Idem, p. 162). Nowadays, decisions of the Council made by written document only are rare and generally relate to minor procedural matters e.g. the decisions in Nov 1993 and July 1994 to delete certain items from the list of matters of which the Council is seised (see infra no.26 and 27).

12. See e.g. S/1995/3* (terrorist attack at Nordiya, Israel). “Presidential statements” are not aptly named. They are statements by the Security Council, read out by the President. But see the Argentine letter of 2 June 1995 (S/1995/456).

13. S/PV.3211.

14. S/PV.3475.

15. S/PV.3538.

16. One procedural vote that routinely took place until recently was on the invitation to the PLO to participate in a meeting, but even that ceased in Feb 1994: S/PV.3340.

17. S/PV.3247.

18. S/PV.3483. The importance of informal consultations, away from the glare of publicity, is of course by no means unique to the Security Council. “Informal consultations” of Council members are quite distinct from “private” meetings of the Council, provided for in rr.48–56. On the latter, see Bailey, , op. cit. supra n.3, at pp.40–43.Google Scholar

19. S/PRST/1994/81.

20. S/PRST/1994/62.

21. S/26176.

22. S/1994/230. On the Security Council staff see S/1995/440.

23. S/26015.

24. On the titles of agenda items, see Bailey, , op. cit. supra n.3. at pp.49–50.Google Scholar

25. S/26812.

26. S/1994/896.

27. Bailey, , op. cit. supra n.3, at pp.44–49. Earlier attempts to conduct a similar exercise, in the 1970s and 1980s, had got nowhere, partly because the attempt was made to develop criteria, e.g. the fact that an item had not been taken up for a certain period. The Council will probably always be somewhat behind in its “pruning” of the list. But perhaps it will henceforth maintain this recent practice by seeing at least once a year (in, say, 06 or 07) what can be dropped.Google Scholar

28. S/1995/234 and S/1995/438.

29. The Provisional Rules of Procedure of the Security Council were last amended in 1982 (S/96/Rev.7). Since 1950 the only amendments have related to the working languages of the Council. See Bailey, , op. cit. supra n.3, passimGoogle Scholar: Prandler, , “Rules of Procedure of the Security Council”, in Questions of International Law (Hungarian Branch of the International Law Association, 1971), pp.147–178Google Scholar; Kelsen, , “Organisation and Procedures of the Security Council of the United Nations” (1946) 59 Harv.L.Rev. 1087–1121Google Scholar; Conforti, , “The Legal Effect of Non-Compliance with the Rules of Procedure of the UN General Assembly and Security Council” (1969) 63 A.J.I.L. 479–489.Google Scholar

30. E.g. the rule that communication of the provisional agenda be made at least three days before the meeting, except in urgent circumstances: see Bailey, , op. cit. supra n.3, at pp.29–32. Some rules are simply ignored e.g. the rule that “periodic meetings” shall be held twice a year (r.4), and rr.10.53 and 57.Google Scholar

31. See the General Introduction to Repertoire, supra n.1. In the absence of express provisions in the rules (e.g. Art.76 of the Standing Orders of the Conference of the International Labour Organisation, adopted in 1990 at the 77th ILO Conference), suspension may be by “common accord” or “general agreement” (A/C.2/1102, para.24) or the power to suspend or waive the rules of procedure may be regarded as inherent in the power to adopt the rules, the same majority applying: for the views of the UN Legal Counsel, see (1977) UN Juridical Yearbook 194, and A/32/PV.103. The General Assembly regularly, on the recommendation of the General Committee, suspends certain rules at the beginning of each session; but suspension ad hoc may be controversial in particular cases, perhaps not so much in itself as because it unfairly prejudices the interests of a particular State or States: see Blum, , Eroding the United Nations Charter (1993), p. 17.Google Scholar

32. Another rule that in the past was frequently waived with the agreement of all members was that providing that “the interval between meetings shall not exceed fourteen days” (r.1).

33. Op. cit. supra n.3.