Other Statements of the 50th General Assembly
27.01.2002 / 21:13
Statement by H.E. Mr. Karel Kovanda, Permanent Representative of the Czech Republic to the United Nations, The case for a new interpretation of Article 31 of the UN CharterNew York, December 1995 Statement by H.E. Mr. Vaclav Havel, President of the Czech Republic, "The Group of 16", The case
Statement by H.E. Mr. Karel Kovanda, Permanent Representative of the Czech Republic to the United Nations, The case for a new interpretation of Article 31 of the UN Charter
New York, December 1995
Statement by H.E. Mr. Vaclav Havel, President of the Czech Republic, "The Group of 16", The case for a new interpretation of Article 31 of the UN Charter
New York, October 1995
Statement by H.E. Mr. Karel Kovanda, Permanent
Representative of the Czech Republic to the United Nations, The
case for a new interpretation of Article 31 of the UN Charter
This paper is being submitted for consideration by the Open-Ended Working Group on the Question of Equitable Representation and Increase in the Membership of the Security Council. It provides argumentation for a proposal of the Czech Republic concerning a Cluster 2 issue.
Article 31 reads as follows: Any Member of the United Nations which is not a member of the Security Council may participate, without vote, in the discussion of any question brought before the Security Council whenever the latter considers that the interests of that Member are specially affected.(1)
The use of Article 31 dramatically expanded in recent years and is practically never challenged, . If a member wishes to take part in a Security Council debate, its request is granted and the member is invited as a matter of course. However, this applies only to formal SC sessions (which is where "discussions" in the meaning of Art. 31, are deemed to occur). The country's statement is heard out by SC members; but as a rule it has no bearing, no impact on the document under discussion - which will have been prepared, every "i" dotted and every "t" crossed, during previous informal consultations. It is hard to recall when, under the impact of a member's statement, the draft document which is on the table would in any way have been amended.(2)
However, the intent of the founding fathers was no doubt different. In mentioning participation in "discussions", their intent certainly was that SC non-members should have a chance to participate in discussions preceding the formulation of SC opinions: even perhaps in drafting the language of resolutions and, by extension, of presidential statements. Article 31 was viewed as a compensatory rule tempering the the fact that Art. 23 governing the SC composition violates the otherwise cherished sovereign- equality principle. The participation provision of Art. 31 recognizes not only the need for the SC to be fully informed but also the legitimate interest of member states in participating in the discussion.(3)
These days, substantive discussions take place of course not in formal sessions but during informal consultations of the Council. However, informal consultations are mentioned neither in Chapter V of the Charter nor in the SC's Provisional Rules of Procedure. This is not an accident: informal consultations take place behind closed doors, and in the early years of the UN, members felt an aversion toward secret diplomacy, an aversion that in the case of smaller and medium-size countries bordered on outrage.(4) Provisional Rule 48 which postulates that the Council usually meets in public is, for example, a direct outcome of these sentiments.
In fact, in the early years of the UN, "informal consultations" actually meant nothing more than that - that is, informal consultations among several, but seldom all, Security Council members. (They were actually often intended to outfox the opposition rather than to seek consensus on the Council.) Informal consultations as we understand them today, i.e., consultations of all members of the Council, were introduced only under Secretary-General Dag Hamarskjöld, when, in November 1955, Amb. Entezan of Iran, then Council President, turned the customary but hitherto annual President's lunch honoring the Secretary-General into a monthly event, a practice which continues to this day. These were the modest beginnings of today's regular informals.
At the time, they served as a vehicle to get around the deep freeze accompanying the coldest period of the Cold War. However, they were held with increasing frequency during the 1960's, during the ebb and flow of detente. In those days, they were informal indeed: with eleven delegations plus secretariat staff and a few interpreters crammed into the President's office. With the increase in 1965 of Council membership to 15 and with the expansion of the number of official languages, the President's office got tighter and tighter. Consultations were not only informal but also physically uncomfortable. Finally, in 1975, the construction of a separate room was authorized (allegedly initiated by secretariat staff and the interpreters).
Thus the present informal-consultations arrangement can be conveniently dated to the completion of the consultations room in 1978 and to the introduction of simultaneous interpretation to its proceedings. From one year to the next, from 1977 to 1978, the number of informals jumped three times and the time spent in them more than quadrupled.(5)
The presumption of secrecy concerning the goings-on during informals is their strength but also their weakness. In actuality, no secrecy obtains: the Secretary-General and his immediate circle is provided with an unvarnished and even scathing daily report of the discussion, for one. More importantly, it has become customary for members of participating delegations to report to Council non-members about the proceedings, sometimes blow by blow. A delegation with enough personnel resources can consequently learn about every comment made behind the closed doors. Those who need to find out, do. In fact, this method of reporting is sometimes actually considered a safety-valve against demands that informal consultations be made more accessible.
Nevertheless, it is assumed that even the mere semblance of secrecy, or at least of confidentiality, allows Council members to speak more freely, to be more amenable to arguments of their colleagues, to be less formal.
On the other hand, it can be argued that the secrecy of these proceedings which generates a certain mystique, combined with their frequency (which peaked in 1994, with 273 meetings) has greatly contributed to the chasm of mistrust between members and non-members of the Security Council. Questions of legitimacy and representativity of the Council, and certainly questions of its transparency, would lose some of their edge if the Council's proceedings were not perceived as being quite so secretive(6). This is where a reinterpretation of Article 31 comes into the picture.
Art. 31 Applied to Informals?
What would happen if Article 31 were interpreted so as to allow the participation of SC non-members in informal consultations, whenever a question affecting their own country was on the agenda? Making this possible is the thrust of the present proposal.
The idea causes discomfort. Some feel that the presence of a representative of a country under review would inhibit the discussion, that Council members would feel constrained in expressing themselves freely, in short, that the assumed great advantages stemming precisely from the secrecy of informal consultations - however fictitious it is - would be lost. This is perhaps the greatest objection heard against proposals to revisit the usage of Article 31.
However, during 1994 and 1995, the SC experienced an important object lesson of how the application of Article 31 to informal consultations would function in practice. One country's various affairs came up in informals practically every month. And all along, a representative of that country attended most of these discussions; for coincidentally, that country itself was a member of the SC during these years: Rwanda.
In 1994 and 1995, the Security Council adopted more than 30 resolutions and presidential statements concerning various aspects of the situation in Rwanda. In addition, in 1995 it dispatched a fact-finding mission to the country.
The gamut of issues concerning Rwanda was so extensive as to be possibly unparalleled in the history of the SC. Consider its breadth: the implementation of the Arusha peace agreement between the Hutu government and the Tutsi Rwanda Patriotic Front (RPF); the changing mandates and strengths of UNOMUR and UNAMIR peace- keeping operations; the genocide; imposing an arms embargo, and relaxing it a year later; refugees and displaced persons; establishing an international war-crimes tribunal, and electing its members; post-war reconstruction efforts; issues affecting neighboring countries - and this list may not even be exhaustive. In addition to the diversity of issues, the intensity of the SC's preoccupation with Rwanda, as measured by the number of documents adopted, was also extraordinary, exceeded during the years in question only by its preoccupation with the former Yugoslavia - which of course includes not one but several countries.
How well the SC managed to cope with the Rwanda issues is a matter of some contention. Its initial response to the genocide and its decision to reduce UNAMIR have been criticized particularly severely. But for the purposes of the present examination, one question looms paramount: Did Rwanda's presence during SC's informal consultations have any substantial negative effect on the quality of these consultations? Or did it in fact help?
During 1994 alone, Rwanda was represented at different times by permanent representatives of two diametrically different governments, and for several months the country was not represented at all. Then again in December 1994, Rwanda actually presided over the SC.
There is no doubt that at times, Rwanda's presence made the work of the Council more difficult. This was particularly clear when a document was being discussed and consensus was sought - either statutorily, in the case of presidential statements, or in the search for as broad as possible support for a resolution. Efforts to accommodate Rwanda's positions in the language of SC documents were often difficult, even exasperating, and not always successful.(7) (The difficulties stemming from the need for Rwanda's acquiescence in consensual matters on occasion led some delegations to think of stretching paragraph 3 of Article 27 of the Charter, which states that "a party to a dispute shall abstain from voting", so as to limit Rwanda's active participation even in informals.)
However, these undeniable difficulties do not in and of themselves constitute an argument against the proposed expanded application of Art. 31, inasmuch as they would not obtain in any future instance. Views of a participating country, which by definition would be a SC non-member, would not have to be accommodated in seeking a Council consensus. In fact they could - and often no doubt would - actually be completely ignored, if SC members disagreed with them.
Another possible negative stemming from Rwanda's participation is more technical. The very process of having the Rwanda delegation explicate its positions and having the Council consider them certainly took extra time. And that could possibly, and uncharitably, be interpreted as a negative as well. On the other hand - and this is the position of the Czech delegation - the benefits from participation of a concerned non- member of the SC would make spending extra time in listening to its opinions and discussing them well worth while.
But there was one last serious negative, and again, one very specific to Rwanda. The presence of the Hutu Government's representative on the Council probably led to the Council not appreciating sufficiently the difficulties between that government and the RPF in the first three months of 1994. Furthermore, after April 6, 1994, it may have slowed the Council's understanding of the true nature of the ensuing genocide. This negative, however, concerns a broader matter, namely, efforts of the Council to have at any given time the best information available, irrespective of its provenance.
Against all this, there was one overridingly important positive result of Rwanda's participation: the Council had at any given time a very direct understanding of the thinking of Rwandan authorities represented at the moment on the Council. Especially in instances when the country's cooperation was important, but even in instances involving Chapter VII provisions, this input was important factually and the direct communications from the delegation of Rwanda were useful. And, in the other direction, it was equally useful that Council members' views were, again through the mediation of Rwanda's delegation, immediately and directly transmitted to Kigali.
The Security Council has the authority to adopt its own rules of procedure, given by Article 30 of the Charter. There is thus nothing to stop the Council from reinterpreting Article 31 so that it apply to its informal consultations. The result should be this:
Whenever the situation in a given country is featured on the agenda of informals, the Council should decide to invite a representative of that country to participate in the discussion of that particular agenda item. Whether a member would be invited on an ad hoc basis or automatically, whether every member featured on the agenda would be invited or just certain members, whether some issues (sanctions renewals?) would continue to be "off limits" - these matters would be up to the Security Council itself to decide, and the practice will no doubt evolve over time.(8) (In the very least, given the current practice of the Council, one could envisage that the non-member country would be invited for the first round of discussion, i.e., for the "first reading" of the Secretary- General's report which usually kicks off the given stage of the consideration of an issue.)
Not even under Art. 31 do members have an explicit, unconditional right to participate in the discussion of issues of interest. The formulation is that a member "may" participate, whenever the Council considers "that the interests of that Member are specially affected". Under Art. 31 it is the right of the SC to invite - or not to invite - members to participate in its deliberation. There is thus no question of any "surreptitious" expansion of SC membership that some may fear.
One of the difficulties with the proposal is that it would automatically give reigning governments of member states an added advantage. This is a serious consideration in situation involving civil strife: for, the opposition would not have the privilege of attending SC consultations under this proposal. Issues of how much practical difference this would mean, whether various opposition groupings might not seek out other vehicles for making their case do perhaps deserve further reflection.(9) Being a government does, however, go with certain prerogatives.
The nature of informal consultations has been changing throughout the 50-year existence of the Security Council. Originally, they amounted merely to consultations of two or of several parties. This type of consultations will exist always, and these are the only truly informal ones. (Today, they take place among various subsets of permanent members, among NAM members, among Contact Group members, among Friends of the Secretary-General for this or that country - to name a few of the more established groups of SC members.) During the 60's, informals served as a vehicle to get around the Cold-War deep freeze. During the 70's, they became institutionalized, with the construction of a special room, and were held more frequently, relegating the SC formal sessions to something of a theatre.
As informals gained in significance in the overall pattern of work of the SC, their secrecy became an ever greater irritant to Council non-members and an obstacle to transparency. Attempts to improve transparency which have taken place so far are important and welcome but even more can, and in the opinion of the Czech delegation should, be done. One major step would be to reinterpret Article 31 of the Charter so as to have it apply to informal consultations as well.(10) Some negative results might follow but the Czech delegation believes that the positive effect would far outweigh any negative ones. This opinion is based, i.a., on the experience during 1994 and 95 with the membership on the Council of Rwanda, a member with one of the hottest agenda items affecting international peace and security during those years.
Statement by H.E. Mr. Vaclav Havel, President of the Czech Republic, "TheGroup of 16", The case for a new interpretation of Article 31 of the UN Charter
Mr. Chairman, Ladies and Gentlemen,
Let me first thank Prime Minister Carlsson for his initiative, and all of you for your contributions to the work of this group dedicated to multilateral solutions to problems of our global neighborhood.
I fully agree that the reform of the United Nations needs a comprehensive framework as well as a set timeframe. A great deal of analytical work has been done, and we all agree that reform is badly needed. Now we have to develop mechanisms to start the political process that will bring the desired results - mechanisms that will translate ideas and discussion into decisions.
The first task, probably the most important one, is to identify the basic values which are common to all cultures. If we succeed, it will be easier to create mechanisms for promoting, defending and if necessary enforcing these values in the global society.
The second batch of issues we have to deal with concerns the credibility, transparency and effectiveness of the United Nations and of the multilateral system as a whole.
We must have the courage to redefine the roles of the existing councils, committees, commissions, secretariats, etc., so as to eliminate overlaps and waste, and to dissolve those agencies that have become or will have become obsolete as circumstances change. First and foremost, however, we need leadership and a genuine readiness to work for changes. That is why I have welcomed this initiative.
There has been much cynicism and scepticism about the present state of world affairs. The only answer to that - if the future is to bring a change for the better - is activity and dedication. I support the idea of continuing our activities.
Thank you, Mr. Chairman.
(1)Article 31 allows participation of a country if a question concerning it is brought before the SC; Article 32 allows such participation if a dispute is raised. Moreover, under Article 32, a member "shall be invited to participate", rather than "may participate" in the discussion. However, since agenda items are nowadays practically never described as disputes, Article 32 is moot. However, were circumstances to change, the thrust of this non-paper would apply, as appropriate, to Article 32 as well.
(2)The only type of cases to the contrary are instances when the Security Council meets in a formal session without actually adopting a document. One could argue that the statement of President Shevardnadze, made during meeting No. 3346 on 9 March 1994, may at least have had a chance of influencing the wording of Resolution 906 (1994) which extended the mandate of UNOMIG and which was adopted at meeting No. 3354 on 25 March 1994 - even though in actuality, there is no evidence that President Shevardnadze's intervention did actually influence it in any way.
France, which coincidentally presided over the meeting with President Shevardnadze, later introduced a measure that called for more frequent formal meetings of the Security Council, just for purposes of debate, even when there was no document to be adopted - "in particular at the early stage in its consideration of a subject" (S/PRST/1994/81, of 16 December 1994). However, these meetings have been conspicuous by their scarcity: only perhaps two have been held in 1995.
(3)Cf., e.g., Bruno Simma et al., The Charter of the United Nations, A Commentary, Oxford University Press, 1994, p. 499. Pp. 495-502 are devoted to Art. 31 in all its aspects.
(4)Cf. Sidney D. Bailey, The Procedure of the UN Security Council, Oxford: Clarendon Press, 1988, p. 40.
(5)For information about the early years, see Lois Feuerle, "Informal Consultations: A Mechanism in Security Council Decision-Making", New York University Journal of International Law and Politics, vol.18, No.1, fall 1985, pp. 267-308.
(6)Pérez de Cuellar, for one, also had his doubts about the secretiveness of infomals. "There is sometimes a risk that this process may become a substitute for action by the Security Council or even an excuse for inaction." Report of the Secretary- General on the Work of the Organization (A/37/1, suppl. 1, p. 2).
(7)Rwanda - represented at the time by officials of the rapidly retreating Hutu Government - for example requested voting by individual paragraphs on SCR 918 (adopted on 17 May 1994) and voted against paragraph 13 which imposed an arms embargo on the country. The new government in Rwanda abstained on SCR 955 (of 8 November 1994) which established the International Tribunal for Rwanda. In April 1995, the presiding Czech delegation was involved in some delicate but finally successful negotiations in order to secure Rwanda's agreement to the text of a fairly comprehensive presidential statement, S/1995/PRST/22.
(8)There is one other issue of significant technical importance. Only perhaps the technical mavens of the Secretariat are still able to distinguish between informal consultations (of the whole) and formal but private SC meetings. Provisional Rule 48 envisions the possibility of the SC holding meetings that are "private" though formal. (The rule says that the SC shall meet in public, "unless it decides otherwise". It thus clearly leaves open the possibility for the SC to meet formally, but in private.) For formal - if private - meetings of the SC, the application of Article 31 in the proposed manner ought to be automatic and would even preserve the continued privacy of informal consultations in the strict sense of the term.
(9)The "Arria formula" allows Council members to hear out foreign dignitaries in a private setting. In order not to violate the current regime of informals, the formula provides for a meeting in a different room and under the chairmanship of someone other than the SC President. If the present proposal were accepted, foreign dignitaries from member states could meet with the Council during informals directly, without resorting to this formula. The formula might, however, still be preserved - especially for parties to disputes who are not members of the UN.
(10)The opinion that this would be a useful step is not new.
Feuerle (op. cit.) ran into it more than ten years ago.