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The Legal Effect of Non-Compliance with Rules of Procedure in the U.N. General Assembly and Security Council

Published online by Cambridge University Press:  28 March 2017

Benedetto Conforti
Benedetto Conforti*
Affiliation:
University of Siena
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Extract

Neither legal authors nor United Nations practice question the conclusion that resolutions of the General Assembly and the Security Council must conform to the U.N. Charter. Faced with a challenge to the legality of a resolution, the majority has never maintained that the acts of U.N. organs have to be complied with when they are inconsistent with the Charter. In such cases the majority has always preferred to deny that a violation of the Charter occurred, often resorting to a liberal, sometimes excessively liberal, interpretation of the provisions of the Charter.

Type
Research Article
Information
American Journal of International Law , Volume 63 , Issue 3 , July 1969 , pp. 479 - 489
Copyright
Copyright © The American Society of International Law 1969

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References

1 For the text of the rules of procedure referred to in this article, see Sohn, Basic Documents of the United Nations 41 ff., 72 ff. (1968). See also U.N. Doc. A/520/Eev. 7 and S/96/Eev. 4.

2 The voting by simple majority for the adoption of the rules of procedure of the General Assembly can be clearly derived a contrario from Art. 18, par. 2, of the Charter. As for the Security Council the adoption of internal rules of procedure is even expressly included, in the Statement of the Four Powers at the San Francisco Conference (Part I, par. 2), among the matters to be decided by procedural vote.

3 This article does not deal with the general problem whether procedural rules of international organizations, and of the U.N. in particular, are properly considered as law. On this problem see Jessup, ‘ ‘ Parliamentary Diplomacy,'’ 89 Hague Academy, Becueil des Cours 201 ff. (1956, I) (hereinafter cited as Hague Becueil), and “International Parliamentary Law,” 51 A.J.I.L. 396 ff. (1957). Professor Jessup's opinion, asserting the full legal nature of procedural rules, has always been held in continental doctrine, particularly in Italy (see 1 Anzilotti, Corso di diritto internazionale 267 (1928); Scerni, Saggio sulla natura giuridica delle norme emanate dagli organi creati con atti internazionali 4 (1930); Monaco, ” I regolamenti intend degli enti internazionali,” 1 Jus Gentium 61 ff. (1938). It is assumed in this article that such opinion is well founded and correct. It is only occasionally that the subject of the present inquiry has aroused the attention of scholars: see Jessup, “International Parliamentary Law,” loc. cit. 401; Sørensen, 101 Hague Eeeueil 93 (1960, I I I ) ; Wengler, Volkerrecht 559 (1964); Durante, L'ordinamento interno delle Nazioni Unite 82 (1964); Castafteda, Valor juridico de las resoluciones de las Naciones Unidas 32 ff. (1967).

4 Cf. 14 U.N. Security Council, Official Records, 847th meeting, p. 3 ff. In that case the Soviet Union insisted there was a violation of Art. 7 of the provisional rules of procedure which, together with Art. 6 and Art. 10, provides that only those matters for which a request for a meeting of the organ has been made by a state or the Secretary General (in accordance with Art. 99 of the Charter) may be placed on the provisional agenda of the Council. This rule does not apply in the case of continuation of a preceding meeting nor when the Council itself has decided to include a new question on the agenda of a subsequent meeting. But the Laotian question did not fall under either of the two exceptions; moreover, the Secretary General had declared that he was acting in an unofficial capacity, and the Laotian Government, on its part, had never requested a meeting of the Council. The resolution adopted on the Laotian question was later denounced by the Soviet Union as “non-existent, illegal and hence not binding upon anyone” (ibid., 864th meeting, p. 22 ff.). It is to be noted that the Soviet Union claimed in this case especially that there had been a violation of Art. 27 of the Charter and that the Council had not complied with the so-called double-veto practice in deciding whether a matter is procedural or substantive; but the inconsistency of the resolution with Art. 7 of the rules of procedure was also urged by the Soviet Union as a ground for invalidity.

5 Cf. 11th Session of the General Assembly (11 U.N. General Assembly, Official Records, Plenary Meetings, 578th meeting, No. 109, and 580th meeting, Nos. 41-43), where a draft resolution of the General Committee was approved which not only excluded from the agenda the question of Chinese representation but also declared that the General Assembly would not take into consideration, during the current session, any proposal aimed at questioning the powers of the Chinese Delegation. The second part of the draft was denounced by India as “not in order” since the General Committee had acted beyond its competence, which under Art. 40 is limited to recommendations concerning the inclusion of items in the agenda or the rejection of the request forinclusion. In the view of the Indian delegate the General Committee, in so acting, usurped powers reserved to the General Assembly in plenary meeting and to the Credentials Committee. The same question arose during the 12th Session (12 U.N. General Assembly, Official Records, Plenary Meetings, 684th and 686th meetings) and met the same objections previously advanced by India. Similar objections were advanced under Art. 40 of the rules of procedure against a draft resolution of the General Committee concerning the inclusion of the Morocco question on the agenda (6 U.N. General Assembly, Official Records, Plenary Meetings, 342nd, 353rd, and 354th meetings).

6 During the 16th Session, for example, a draft resolution was abruptly presented to the 5th Committee of the General Assembly concerning the issuing of United Nations bonds. (This draft later became Resolution No. 1739-XVI of Nov. 20, 1961.) Several states (including all the Communist bloc) complained of the inconsistency of the resolution with Art. 15 of the rules of procedure (which prescribes that “No additional item may be considered until seven days have elapsed since it was placed on the agenda … ” ) and declared that they would not consider themselves bound by the resolution: cf. 16 U.N. General Assembly, Official Records, 5th Committee, 906th meeting, No. 26 ff. (U.S.8.E.); 907th meeting, No. 16 (U.S.S.E.); 908th meeting, Nos. 21-24 (France), No. 34 (Eumania); 909th meeting, No 16 (Czechoslovakia), and Nos. 21-22 (Poland). The majority opinion, on the other hand, considered the issuing of bonds as a matter related to the approval of the budget and therefore capable of being discussed as a sub-item of the corresponding item on the agenda. Similar objections were made by India during the 9th Session against a draft resolution concerning the Chinese representation question, which was presented to the General Assembly without following the procedure prescribed by Art. 15 (9 U.N. General Assembly, Official Records, Plenary Meetings, 473rd meeting, No. 121 ff).

7 In September, 1949, during the discussion by the Security Council on a draft resolution presented by the U.S.S.E. concerning the simultaneous admission of thirteen states, the United States proposed that part of the draft should be voted on separately. This proposal met stern opposition on the part of the Soviet Union. Art. 32 of the provisional rules of procedure of the Council states that “Parts of a motion or a draft resolution shall be voted on separately at the request of any representative, unless the original mover objects.” Since the Council did not accept the Eussian objection, thereby proceeding to vote separately on the different parts of the resolution (which, however, was never adopted), the Soviet Union requested that its dissent be put on the records specifying that, in its opinion “The majority of the Security Council [had] taken an arbitrary step and in violation of rule 32 of the Council's rules of procedure” (4 U.N. Security Council, Official Records, 444th meeting, p. 5). For the long debate on this matter and relevant remarks of the delegates, of. ibid., 443rd meeting, p. 34 (U.S.A.), p. 35 (U.S.8”.E), p. 37 (U.S.A.); 444th meeting, pp. 3-4 (Canada), pp. 10-11 (U.S.S.E.), p. 12 ff. (President: United Kingdom), p. 18 ff. (U.S.S.E.). During the 900th meeting of the Security Council, while dealing with the Congolese question, the President (Italy) ruled with the support of the majority that Guinea (a state not a member of the Council, but invited to participate in the meetings) should not be given the right to speak on a procedural question. The ruling by the President was objected to by the Soviet Union as “completely irregular and inconsistent with I the rules of procedure” in the light of Art. 37 of the rules of procedure, which does I not limit to substantive questions alone the right to speak of a non-member state invitedto participate in the meetings of the Council (15 U.N. Security Council, Official Records, 900th meeting, p. 9). Another decision regarding a procedural matter, which was considered invalid by the Soviet Union, is that adopted by the majority of the Council during the 989th meeting of January 30, 1962. This decision concerned an adjournment of the meeting, under Art. 33 of the rules of procedure, before starting the debate on the question as to whether certain matters should be placed on the agenda. In this particular case the meeting had been called at the request of the U.S.S.B. In the opinion of the U.S.8.E. representative, Art. 33 applies only when the agenda has already been approved, and therefore may not justify a motion of adjournment designed to bar the adoption of the agenda itself on the threshold of the discussion. For the debate, cf. 17 U.N. Security Council, Official Records, 989th meeting. For other similar cases, cf. 11 ibid., 715th meeting, pp. 23-24; ibid., 17th Year, 998th meeting, pp. 21-27.

8 Besides the cases cited in the preceding notes, cf. the statement made by the Chilean representative during the meeting of the Security Council of June 6, 1952, concerning a clear violation of the rules of procedure by the President (U.S.S.B.). On that occasion the Chilean representative declared: ” I should like to remind the President that the rules of procedure have been especially drawn up to protect the rights of the minority. Those rules, if correctly interpreted, especially favor the minority to which the President frequently belongs. Hence he, more than anyone, should be interested in ensuring that the functions of the President are exercised in accordance with the rules.'’ (Cf. 17 U.N. Security Council, Official Records, 581st meeting, pp. 12-13.)

9 This opinion is upheld especially by the Western Powers and also by a number of other states. Among the many statements, all made in connection with previously quoted cases, cf: 4 U.N. Security Council, Official Records, 443rd meeting, p. 34 (U.S.A.) ; ibid., 444th meeting, pp. 3-4 (Canada) ; p. 6 (Egypt); pp. 12-13 (President: United Kingdom); ibid., 11th Tear, 715th meeting, pp. 23-24; 9 U.N. General Assembly, Official Records, Plenary Meetings, 473rd meeting, No. 121 ff. (President: India). Cf. also the statements of the Yugoslav delegate in 5 U.N. Security Council, Official Records, 461st meeting, pp. 11-12.

10 Among the many cases of renunciation of the translation prescribed by Arts. 42 and 43 of the provisional rules ot procedure of the Security Council, cf. 3 U.N. Security Council, Official Records, 273rd taeeting, p. 225; 4th Year, 445th meeting, pp. 30-31; 16th Year, 956th meeting, p. 26; ibid., 982nd meeting, p. 29. n The provision of Art. 27 of the rules of procedure of the Security Council, for instance, has always been given a flexible interpretation. According to this provision

11 The President shall call upon representatives in the order in which they signify their desire to speak“; in some cases, however, this order has been modified in favor of a state under a certain accusation or in favor of a member state of the Council or infavor of a non-member, according to circumstances. Cf. on the subject, 5 U.N. Security Council, Official Records, 525th-526th meetings; 8th Year, 639th meeting, pp. 1-2; 15th Year, 851st meeting, pp. 7-8; 22nd Year, 1373rd meeting (Doc. 8/PV.1373, pp. 2-31).

12 E.g., during the debate on the Greek question in the Security Council, the President decided to admit some delegates to speak after the Council's resolution to refer the question to a subcommittee. The decision of the President was objected to as “irregular” by a member of the Council who, however, desisted from any further challenge. Cf. 2 TJ.N. Security Council, Official Records, 177th meeting, p. 1815 ff. For other less important procedural questions which have been discussed in the General Assembly and the Security Council, cf., respectively, 1 Repertory of the Practice of the U.N. Organs (hereinafter cited as U.N. Eepertory), Art. 20, pars. 13-14 (concerning the power of the Secretary General to postpone the opening date of a session of the General Assembly after separate consultations with each Member) and Repertoire of the Practice of the Security Council, Supp. 1952-55, p. 56, cases Nos. 31 and 32. Cf. also, 17 U.N. Security Council, Official Records, 998th meeting, p. 18 ff. (concerning the possibility for a nonmomber state which has been invited to participate in the discussion and has presented a draft resolution with the support of a Member State, under Art. 38 of the provisional rules of procedure, to be allowed to discuss whether parts of the draft should be voted on separately, in accordance with Art. 32 of the rules of procedure).

13 Cf. note 2 above.

14 See Castafieda, op. cit. 33 ff.

15 See, for instance, Arts. 5, 31, 36 (which contain the expressions “normally” and “ordinarily“), 48 (“unless it [the Council] decides otherwise“) of the provisional rules of procedure of the Council. Identical expressions can be found in some articles of the rules of procedure of the General Assembly ﹛e.g., in Art. 67).

16 Therefore, there is no ground for the position taken by the Yugoslav delegate during the meeting of the Security Council of January 13, 1950 (5 TJ.N. Security Council, Official Records, 461st meeting, pp. 11-12). According to the Yugoslav delegate, the non-compliance with Art. 18 of the provisional rules of procedure concerning the order of succession in the presidency of the Council was perfectly admissible on that particular occasion in order to prevent the appointment of the Chinese delegate to the presidency. The Yugoslav representative justified his position by stating that “Several rules … [of the provisional rules of procedure] … include some such words as ‘unless it decides otherwise'. The same could be said of all the rules.” [sic! ]

17 It is therefore our opinion that the principle of which we are speaking could not be denied even if the adoption of the rules of procedure by the General Assembly and the Security Council were not expressly prescribed by Arts. 21 and 30 of the Charter.

18 Indeed, Art. 2, par. 1, of the Charter has been invoked more than once, in UnitedNations practice, by those states upholding the inviolability of the rules of procedure (for this practice, see Section I above).

19 We must, therefore, consider illegal the attitude taken by the majority in the case of 17 U.N. Security Council, Official Records, 989th meeting (note 7 above), where a motion of adjournment sine die was approved at the very opening of the session and even before the start of the discussion for the drawing up of the agenda. In that way the dissenting minority was deprived even of the possibility of expressing its opinion on the adoption of the agenda.

20 For.the same opinion, see Kelsen, The Law of the United Nations 140 ff. (1950); Jessup, “Parliamentary Diplomacy,” loc. cit. 204 (note 3 above); Detter, Law Making by International Organizations 50 ff. (1965). Also in the practice of the General Assembly the opinion that the rules of procedure may not be in conflict with the provisions and principles of the Charter has often been set forth by general consensus on the occasion of proposals for the amendment of the rules of procedure: cf. 1 U.N. Repertory, Art. 21, par. 10 ff. A similar situation to the one pointed out in the text arises when the majority not only does not comply with the rules of procedure but violates a specific provision of the Charter as well. In such a case the violation of the rule of procedure loses its relevance, being overshadowed by the violation of the Charter.

21 Obviously no question arises in those cases where the rules of procedure themselves expressly allow a limited non-compliance under particular circumstances (for some examples of provisions of this kind in the rules of procedure of the General Assembly and the Security Council, see note 15 above), or when the rules of procedure do not appear to be of mandatory character, but rather mere Sechtlinien (cf. Wengler, op. cit. 559).

22 We must, therefore, consider illegal the action taken by the majority of the General Assembly in the case of 16 U.N. General Assembly, Official Records, 5th Committee, 906th-909th meetings (referred to in more detail, note 6 above), and that of the Security Council in the case of 14 U.N. Security Council, Official Records, 847th and 848th meetings (referred to in more detail, note 4 above). In both these cases there had been a substantial and abrupt violation of Art. 15 of the rules of procedure of the General Assembly and Art. 7 of the provisional rules of procedure of the Security Council concerning the drawing up of the agenda. The same must be said for the other case (9 U.N. General Assembly, Official Records, 473rd meeting, No. 121 ff.) referred to, note 6 above.

23 The cases referred to in note 5 can be considered as falling under this hypothesis of illegal non-compliance with the rules of procedure.

24 We should, therefore, consider as inadmissible the non-compliance with Art. 32 of the provisional rules of procedure of the Security Council in the case of 4 U.N. Security Council, Official Records, 443rd and 444th meetings. For more details, see note 7 above.

25 The opinion set forth in the text may be regarded also as a specification of (and as an attempt to render less vague) the thesis of those authors who only give relevance to the violations of the rules of procedure that are “important” (Wengler, op. cit. 559; Sørensen, loc. cit. 93).

26 See note 9 above.

27 The opinion is founded on the principle that the legislative assembly is ‘ ‘ the sole judge of the lawfulness of its own proceedings” (May, edited by Campion and Cocks, Treatise “on the Law, Privileges, Proceedings and Usage of Parliament 59 ff. (15th ed., 1950)). This principle, that, for some authors, extends even to the constitutional rules regulating the process for the enactment of statutes, is undoubtedly recognized in regard to the internal rules of procedure. Cf., among many others, Gooch, “Legal Nature of the Legislative Rules of Procedure,” 40 Virginia Law Review 538 (1925-1926) (containing references to American cases); Esposito, La validità delle leggi 297 (reprint of 1934 ed., 1964) (with references to the literature of different countries); Vedel, Cours de Droit Constitutionnel et d’ iestitutions Politiques 942 ff. (Paris, 1960-1961); Maunz Dürig, Grundgesetz, Kommentar (1961), Art. 40, pp. 10-11.

28 I n Italy, for instance, the constitutionality of a law enacted following a process which is in conflict with the rules of procedure of one of the two Chambers is not questioned, in spite of the provision of Art. 64 of the Constitution, which requires a special procedure (e.g., absolute majority of the members of the Chamber) for the adoption of the rules of procedure, as compared to the process required for the adoption of laws (majority of the members present). Of. Esposito, ” L a Corte Costituzionale in Parlamento,” 4 Giurisprudenza Costituzionale 629 ff. (1959); see also the judgment of the Italian Constitutional Court of Sept. 3, 1957 (No. 9), 2 Giurisprudenza Costituzionale 259 ff. (1957).

29 By interna corporis we mean the internal procedures of the organ.

30 This opinion is maintained in Italy by Esposito, ” L a Corte Costituzionale in Parlamento,” cited above, p. 623 ff.

31 We have particularly in mind, as to the Security Council, the position of responsibility held by the permanent members for the implementation of the Council's resolutions.