Chapter 1:   THE CONSTITUTIONAL FRAMEWORK

Section 4:   Provisional Rules of Procedure

 

Why are the Council’s Rules of Procedure still ‘Provisional’ and what does that mean in practice?

 

In the debate on Security Council reform, much has been made of the fact that the Council’s Rules of Procedure are still entitled “Provisional”.  Some have interpreted this to mean that the Rules of Procedure are still in draft format and therefore are merely advisory, non-binding guidelines and that this situation contributes an unnecessary level of uncertainty as to the Rules’ validity. 

 

In fact, at the Council's very first meeting, on 17 January 1946, the Council formally adopted the Provisional Rules of Procedure, thus placing them on the same plane legally as the adopted rules of procedure of the other principal UN organs such as the General Assembly or ECOSOC.  The main difficulty confronting the Security Council was deciding to what extent its rules would elaborate on the unique voting arrangements set for it in Article 27 of the Charter, an issue which did not face the other UN organs.  Because it quickly became evident that this question could not be resolved without further in-depth discussion, the Council decided to immediately adopt the rules necessary for beginning its substantive work at once, while retaining the word "Provisional" in the title of its rules as political signal – without any legal significance – of its intention to revisit the question of its voting arrangements at a later time.  

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To this end, after adopting the Provisional Rules of Procedure, at that same first meeting, the Council tasked its Committee of Experts to develop recommendations in this regard.  At the time, some members (notably the Soviet Union) favoured having the Rules spell out the criteria for determining whether a matter was substantive or procedural, that is, under what circumstances the veto would apply.  Other members (notably the Western States) believed that this was a matter which could only be worked out through case-by-case practice over time.  In addition, some members wanted the Rules to elaborate on the Article 27(3) requirement for obligatory abstentions.  A few members also thought the Rules should set out what would happen if a permanent member voluntarily abstained on a substantive vote, a scenario not addressed by Article 27(3).  

 

After the Committee of Experts failed to reach agreement on these points, on 13 May 1946 the Council decided to postpone study of the questions and thus the Rules remained provisional.  As an interim measure, the Council adopted a non-committal rule relative to voting which merely stated:  “Voting in the Security Council shall be in accordance with the relevant Articles of the Charter and of the Statute of the International Court of Justice.”  (today's Rule 40)

 

In the months, and then years, that followed, the divisions – particularly among the permanent members – as to the parameters of the veto and other voting matters only intensified, making it even more difficult to envisage reaching agreement on specific rules governing them.  This exacerbated sensitivities with respect to the Rules as a whole, such that they were revisited by the Council only when absolutely necessary.[1]  Thus, even when at last a list of procedural matters to which the veto would not apply was agreed through practice and published, with the accord of Council members, in the Repertoire of the Practice of the Security Council, the Council members remained averse to reopening the Rules of Procedure in order to reflect this fact in an official way.

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Over time, the historical roots of the Council's original reason for retaining "Provisional" in the title of its Rules of Procedure were lost sight of, together with the fact that the Rules of Procedure had actually been adopted.  Instead, the common belief has come to be that at least some Council members wish to retain the word “Provisional” so that the Rules of Procedure will remain merely advisory in nature, and thus able to be disregarded at will. 

 

This belief has given rise to two significant misunderstandings: 

 

1)  If “Provisional” were struck from the title, the Council would then be obligated to follow its Rules of Procedure, as written, without deviation.  This is not the case.  Article 30 makes clear that the Council’s authority to determine its procedures is ongoing.  If, by striking the word "Provisional" from the Rules of Procedure, the Council would make clearer that its Rules in fact are adopted, this would not prevent the Council from amending them whenever support among its members is sufficient, as is also the case with the General Assembly and the other principal UN organs.  The Council has already amended its Rules seven times in the past,[1] and this right would continue in the event the Rules were no longer denominated "Provisional".  Moreover, like the other principal UN organs, the Council would also retain the power to suspend, explicitly or implicitly, any rule whenever there was sufficient agreement to do so. 

 

2)  Because the Rules remain “Provisional”, the Security Council has followed practice of not adhering systematically to them.  This also is not the case.  Other than a number of minor rules which have been implicitly modified or suspended (see a related article on this website), the Council regularly adheres in full to its principal rules despite their “provisional” status.  These include Rule 9 on the agenda; Rule 11 on the Summary Statement of matters of which the Security Council is seized; Rule 18 on the rotation of the Council presidency; Rule 28 on establishing subsidiary organs; Rule 32 on voting order;[2] Rule 35 on the withdrawal of a draft resolution;[2] Rule 37 on the participation in Council meetings of non-Council Member States; Rule 39 on the participation of individuals; Rules 41 and 42 on translation and interpretation, etc.  This is so much the case than in some instances when it has been felt necessary to deviate from some of these principal rules, the Council has published a specific decision to that effect. 

 

For example, there have been two occasions when Rule 18 has been formally suspended, both in connection with the Rwandan genocide of 1994.  During that year, Rwanda was serving as an elected member of the Council.  The atrocities in the country reached a peak in July and for some time Rwanda was not officially represented in New York.  If alphabetical rotation had been followed pursuant to Rule 18, it would have been Rwanda’s turn to serve as Council President in September.  On 25 August, the Council adopted a presidential statement deciding to suspend Rule 18 so that Spain, next in alphabetical order, would serve as President that month instead.[3]  On 16 September, with Rwanda now represented on the Council by a new delegation, the Council adopted a second presidential statement deciding to suspend Rule 18 once again, this time to allow Rwanda to serve as President in December 1994. The PRST provided that thereafter, “the Presidency will again be held as specified in Rule 18”.[4] 

 

Another explicit suspension was decided in 2004, when the Council, in the context of holding official meetings in Nairobi, adopted resolution 1569 (2004), by which it waived the requirement of Rule 49 that verbatim records should be made available the first working day following a meeting.  It decided instead that the records for those meetings away from Headquarters would subsequently be issued in New York.   

 

Because of the lesser rules which are now partially or wholly in abeyance, it would not be possible today merely to strike the word “Provisional” from the face of the Council’s Rules of Procedure.  Rather, the Rules would first need to be studied to determine which are still valid, as written, and which are not. 

 

Given the fact that the Security Council is a politicized body, it is likely any attempt to redraft the Rules to make them fully contemporary and no longer “provisional” would be highly divisive.  In fact, Council members were so reluctant to reopen the Rules in 1993 – when they decided that verbatim records would no longer go through a review process but would instead be “issued in final form only” – that this change was made not to the Rules themselves, but rather was set out in a Note by the President.[5]

 

Nonetheless, it would be well for there to be clarity as to which rules remain fully valid, as distinct from those which have been implicitly or informally modified or suspended.  To that end, a companion article on this website identifies the rules in the latter category.

 

(This update supplements pages 9-12, 296 and 671 of the book.)

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[1] For example, Rule 61 was added in 1947 to deal with a previously unanticipated voting pattern which could arise when the Council, simultaneously with the General Assembly, elects judges of the International Court of Justice.  Rules 58 and 60, relating to the interface between the Council, the Secretary-General and the General Assembly with regard to the admission of new UN Member States, were revised in 1947. Rule 13, regarding credentials, was revised in 1950 in the context of controversy over the seating of China. The more recent changes to the Rules involved the expansion of the Council’s working languages.  Russian and Spanish were added in 1969, Chinese in 1974, and Arabic in 1982, with each addition entailing revision of Rules 41 and 42 and the eventual deletion of Rule 43 (see related article on this website).  Since the amendment of the Rules in 1982 to provide for the use of Arabic, no further formal amendments have been adopted. Thus, the present version of the Provisional Rules of Procedure remains the one issued in 1982 under the symbol S/96/Rev. 7.

[2] See related article on this website.

[3] S/PRST/1994/48.

[4] S/PRST/1994/55.

[5] S/26389.