11 August 2024

Chapter 5: CONDUCT OF MEETINGS AND PARTICIPATION
Section 1: States invited to participate in Council meetings

Controversies increase over participation of non-Council Member States in Council meetings

For a number of years, there was general agreement among Security Council members as to the practices surrounding the participation of non-Council Member States in formal Council meetings. However, especially after Russian forces invaded Ukraine in 2022, a number of contentious issues have arisen over such participation, which has led to the unravelling of many of the Council’s earlier understandings. This situation is not helped by the fact that Rule 37 of the Council’s Provisional Rules of Procedure, which governs this participation, sets out the standards for participation, but is silent as to the modalities by which it is to be effected.

Rule 37 reads: “Any Member of the United Nations which is not a member of the Security Council may be invited, as the result of a decision of the Security Council, to participate, without vote, in the discussion of any question brought before the Security Council when the Security Council considers that the interests of that Member are specially affected, or when a Member brings a matter to the attention of the Security Council in accordance with Article 35 (1) of the Charter.”

Charter framework

As is clear from the wording, the first case envisaged by Rule 37 devolves from Article 31 of the Charter, which reads: “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.” (our emphasis)

The second case envisaged by Rule 37 explicitly cites Article 35(1) of the Charter. This article reads, “Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly.”

A third relevant Charter article, which is not referenced in Rule 37 by either wording or citation, is the first sentence of Article 32: “Any Member of the United Nations which is not a member of the Security Council or any state which is not a Member of the United Nations, if it is a party to a dispute under consideration by the Security Council, shall be invited to participate, without vote, in the discussion relating to the dispute.” (our emphasis) The Repertoire of the Practice of the Security Council points out that of the Charter articles relevant to participation in Council meetings, only Article 32 “involves an obligation of the Council”. Yet this obligation is not absolute, but rather comes into effect only if the Council finds that the matter before it is a “dispute”.[1]

Application of Rule 37

Before the 1960s, states requesting to participate pursuant to Rule 37 were mostly those directly involved in a particular matter under consideration by the Council. But from the 1960s onwards, other states such as neighbouring countries, or countries professing solidarity with one of the parties, have increasingly requested to be allowed to place their views before the Council.[2]

In recent years, controversies have arisen concerning the following questions relating to the participation of non-Council Member States:

1) Who can initiate invitations for non-members to participate in Council meetings?

The Charter of the United Nations: A Commentary, 3rd edition[3] states that “The initiative for the participation of a non-member can be taken either by the Security Council or by the state affected.” This is the view expressed as well by La Charte des Nations Unies: Commentaire article par article, 3e édition.[4]

The drafting history of Rule 37 indicates that at the outset, Security Council members were primarily focused on allowing fair access to non-members which might be directly impacted by Council deliberations and decisions. And in fact, the vast majority of cases of Rule 37 participation have been initiated by the interested non-member.

Nonetheless, it was never excluded that the Council might itself invite a non-member to participate in a meeting. And there have been ample instances when the Council has itself extended an invitation, formally or informally, albeit not always meeting with a positive response. In 1948, the Council took up the question of the communist takeover in Czechoslovakia. After the new government did not submit a request to participate in the Council’s meetings on this situation, the United States proposed a formal motion, which was adopted by nine votes in favour and two abstentions. It read: “The Government of Czechoslovakia is invited to participate without vote in the discussion of the Czechoslovak question now under consideration by the Security Council, and the Secretary-General is instructed to notify the Czechoslovak representative to the United Nations accordingly.” (S/PV.278)

However, as detailed in Section 4 below, Czechoslovakia did not deem itself bound by the Council’s decision and declined to participate.

At a meeting held in 1963, the representative of Ghana asked the Security Council to address an invitation to the South African representative “to appear before the Council” for its discussion on “The question of race conflict in South Africa” (S/PV.1040). After holding consultations on Ghana’s proposal, at the next meeting the Council President (Morocco) reported back “the general view” that the Council “considers it desirable to address an invitation” to the South African government. He then read out a draft cable to South Africa’s Foreign Minister stating that: “At its 1041st meeting on 23 July the Council decided, in accordance with rule 37 of the Council's provisional rules of procedure, to invite the Republic of South Africa to participate, without vote, in its discussion of this item. Accordingly, on behalf of the Security Council, I hereby invite you kindly to designate a representative for this purpose.”

After no Council member commented on the draft cable, the President deemed that the Council had decided that it be sent. However, as detailed in Section 4 below, South Africa then sent a letter by which it declined to participate.

More recently, in 2023, the Russian representative reportedly sought to have the Council invite Denmark, Germany and Sweden to participate in a meeting it had requested relating to the explosions which damaged the Nord Stream pipelines the year before. With unanimity lacking among Council members, the invitations were not extended, although the three non-members reportedly were made aware of the Russian wish. During the meeting, the Russian representative commented that the three states had instead prepared a collective letter (S/2023/517), but that this “cannot replace a full-fledged briefing by them to Council members, in which we could ask them questions” (S/PV.9373).

At a meeting on 25 July 2024, several Security Council members engaged in a contentious argument over the question of the Council itself inviting a non-member to participate. At the outset of the meeting, the Russian representative, serving as Council President, stated that his delegation had invited fellow Council members to invite Ukraine to participate.[5] In this connection, he acknowledged that “Naturally, accepting or rejecting such an invitation is the sovereign right of any state, and no state can be compelled to act in one way or the other.” He then noted that owing to the objection of one Council member, the invitation was not sent. The Russian representative defended the wish of his presidency to invite Ukraine on grounds that Rule 37 provides that the Council can invite to a meeting any state whose interests might be affected. Such participation, he said, “is to help the Council take a decision. That is the whole thrust behind invitations under rule 37, and not for states only to come when they have something to say…. The Council is not an ‘open mic’ or a talk show.”

In response, the United Kingdom representative contended that “the very longstanding practice for briefings in the Council is that we extend an invitation to non-Council members upon their request and we do not do it proactively, as a matter of practice.” He added, “It is not for the Council to put pressure on non-Council members to appear before us. It is up to non-Council members to decide when their interests are engaged in a debate and when they would like to speak.” This was, he affirmed, “a matter of respect for the wider UN membership.”

After France and United States voiced support for the position expressed by the United Kingdom, the Russian presidency concluded the discussion by stating that “because there was no unanimity on the Council’s part in this regard, we did not invite those who could have made a contribution to today’s discussion” (S/PV.9693).

While the Russian presidency was correct in stating that the Security Council is legally entitled to extend invitations on its own initiative, this case illustrates the fact that there needs to be political agreement among the members for the Council to do so.


2) Do requests from non-members to participate require a specific format?

Whether or not there is a correct format for requests by non-members to participate in Council meetings is not codified in either the Council’s Provisional Rules of Procedure or any of the Council's presidential notes on working methods. By practice, however, a non-member wishing to participate should make a formal request in writing, whereas if one or more Council members request the participation of a non-member, on occasion a formal letter by the non-member is not deemed necessary.

The question recently arose as to precisely how a written request from a non-member should be addressed. A related article on this website details a case which occurred during the Russian Council presidency in July 2024. On 8 July, the representative of Ukraine sent a letter requesting to participate in a Council meeting. This letter was addressed only to “United Nations Security Council”, rather than to the Council President, as is normal practice.[6] The Russian representative chairing the meeting contended that Ukraine’s letter had been “in violation of standard practice” and implied that his presidency would not have extended an invitation to that state had it not been that the United States – that is, a Council member – subsequently requested Ukraine’s participation.

Owing to a lack of codification as to how a letter of request should be formatted, it is open to interpretation whether addressing such requests to the Council President is simply the usual procedure or, in fact, a requirement. However, in light of the Council's overall practice, this is more likely a question of protocol than of legal obligation.


3) How is it decided whether or not a non-member will be able to participate?

As discussed above, Rule 37 enunciates several standards for participation based on articles of the Charter, and in the Council’s earlier decades, there was lively discussion around their applicability to the participation of specific non-members. But in later decades, such discussions have generally faded out, with the Council now weighing a request to participate by criteria which are more political than legal. And this is allowable because Rule 37 does not require that the Council state the grounds for its decisions to extend, or not extend, invitations.

As with any aspect of procedure, disagreement among Council members with respect to a request to participate can be decisively resolved in the Council Chamber through a procedural vote.[7] However, formal votes on inviting a non-member to participate have been extremely rare, with only one having occurred since 2000 (see Section 5 below).[8] Normally, cases are resolved among Council members informally. A presidency will keep track of requests received and then inform the other Council members, at which point any member may convey an objection.

The outcome of an objection being raised in consultations has fluctuated over the years. During some time periods, a consensus rule has been followed, such that opposition by a single Council member has been sufficient to block participation. This occurred, for example, in 2018 when Türkiye asked to make a statement on behalf of the Organization of Islamic Cooperation at a meeting on the Palestinian question. After his request was denied, the Turkish representative wrote to the Council President that it was “deeply regrettable that our request to be included on the list of speakers … was not accommodated owing to the objection of one permanent member” (S/2018/529). During other time periods, however, it has taken objections by more than one Council member to block a request to participate. In the various cases detailed below, evidence can be found of each of these scenarios.

As for a decision by the Council to itself extend an invitation, at the 25 July 2024 meeting on Ukraine discussed in Section 1 above, the Russian Council President implied that if decided informally outside of the meeting, consensus would be required. And on this point, he was not contradicted.[9]

What is definite is that it is not correct procedure for a Council President to take it upon themselves to decide unilaterally to extend an invitation. Rule 37 clearly states that a non-member “may be invited, as the result of a decision of the Security Council . . .” (our emphasis). By extension, it also is not correct procedure for a Council President to attempt to unilaterally reject a request to participate, although presidencies have occasionally done so.

It should also be noted that Article 31 and Rule 37 speak of non-member participation “in the discussion of any question brought before the Security Council . . .” (our italics). As noted in the book (page 247), while many have considered the word “discussion” to be synonymous with the word “meeting”, another interpretation is possible: The phrase can also be seen as providing for non-member participation in the overall discussion concerning a particular question, but not necessarily in every Council meeting held as part of that discussion.


4) Can the Security Council oblige a non-member to participate in a formal meeting?

The Charter of the United Nations: A Commentary, 3rd edition,[10] states that “No duty to participate on the part of the State invited by the Security Council can be deduced from the Charter.” Along the same lines, although with specific reference to Article 31 of the Charter, La Charte des Nations Unies: Commentaire article par article, 3e édition, states, “Si l’initiative de la demande de participation émane du Conseil de sécurité, les termes de l’article 31 n’engagent pas à laisser penser qu’il existe, pour l’invité, une obligation de répondre à l’invitation.”[11]

As mentioned in Section 1 above, in 1948, the Council adopted a decision whereby the Secretary-General was instructed to notify the Czechoslovak representative that his government was invited to participate in a Council meeting (S/PV.278). Nonetheless, at the next Council meeting on this matter, it was confirmed that Czechoslovakia had rejected the invitation on grounds that its national situation came under Article 2 (7) and was therefore outside of the Council’s mandate (S/PV.281).[12]

In the 1963 case referred to above, the government of apartheid South Africa refused to participate in a Council meeting, similarly stating that the South African policies under discussion fell “solely within the domestic jurisdiction of a Member State” (S/5381).

The question as to whether a non-member has a duty to attend a meeting if its participation is sought by one or more Council members resurfaced in 2023. For a meeting requested by the Russian delegation on Ukraine’s attack on the Russian city of Belgorod, the Russian representative sought to have Czechia participate in light of the alleged use of Czech-made projectiles in the attack. In response, the Czech representative sent a letter stating that “Russia has unfortunately repeatedly used the platform of the Security Council to share disinformation and propaganda regarding the war [against Ukraine]. We have no reason to believe that today’s briefing will be any different, and Czechia will therefore not participate.” (S/2023/1076)

At the meeting, the Russian representative said, “We tried to invite the Czech Permanent Representative to address us today, but he cowardly declined to participate.” It is to be noted, however, that he did not contest Czechia’s right to decide not to particpate (S/PV.9524).


5) How directly must a matter concern a non-member for it to be invited to participate?

It will be recalled that Rule 37 provides for non-members to be invited to participate “in the discussion of any question brought before the Security Council when the Security Council considers that the interests of that Member are specially affected, or when a Member brings a matter to the attention of the Security Council in accordance with Article 35 (1) of the Charter.”

With respect to meetings held under the “Debate” format, the Council’s comprehensive S/2017/507 presidential note on working methods provides for the participation of “non-Council members that are directly concerned or affected or have a special interest in the matter under consideration” (our italics).

In the vast majority of cases, an authentic connection is self-evident between non-members requesting to participate in meetings and the matter to be discussed. Nonetheless, in a small number of cases that connection may be contested.

At a meeting held in October 2022 on the diversion of Ryanair Flight FR-4978 over Belarus airspace, the Russian representative expressed “surprise and great disappointment at the decision of the President [Gabon] to allow representatives of several European Union States to participate in today’s meeting. They have no connection with today’s agenda item. That sets a bad example and demonstrates a lack of integrity.” The Russian representative did not, however, attempt to block the participation of those non-members by calling for a procedural vote (S/PV.9175).

In 2023, another case arose concerning how directly a non-member should be connected with the matter under consideration in order for it to participate. On 6 July 2023, the Council met for its biennial consideration of resolution 2231 (2015) regarding Iran’s nuclear programme and the related Joint Comprehensive Plan of Action (JCPOA). The Russian representative requested a procedural vote on a request by Ukraine to participate on grounds that the Council's consistent practice had been to invite only those non-members which were party to the JCPOA. The United Kingdom representative countered that as Council President, she was correct in proposing the invitation because in her prior consultations with Council members, a clear majority had supported Ukraine’s participation. The United States representative argued that it would be unconscionable to deny Ukraine the opportunity to speak because that country was experiencing firsthand the devastating consequences of Iran and Russia violating their obligations under resolution 2231 (2015) by the transfer of UAVs without the Council's approval. In the subsequent procedural vote, twelve Council members voted in favour of Ukraine's participation and the invitation was extended (see related article on this website).

In Section 6 below are set out two cases where the Council decided not to invite non-members in spite of the fact that these states believed they met the criteria for participation.


6) What recourse is there for a non-Council member whose request to participate is denied?

The most formal recourse of a non-member whose request to participate is denied is to send a letter to the Council President attaching the statement that the representative intended to give had they been invited. Frequently, the cover letter will include particulars of a request to participate and voice a complaint that it was not heeded. While such letters can be published as official S/ documents if requested by the sender, the attached statements are not as likely to reach wide attention as had they been part of a webcast and verbatim record of a meeting.

In October 2022, the Lithuanian representative sent one such letter in which he expressed his “utmost disappointment on the last-minute decision of the President of the Security Council [Gabon] to revert its previously communicated decision to allow Lithuania to participate” at a meeting on Ukraine and deliver a statement on behalf of itself, Estonia, Latvia and Czechia (S/2022/790). In 2021, the representative of the Dominican Republic sent a letter in which he stated that “given the magnitude of the recent events and the current crisis in Haiti owing to the assassination of its President, we strongly believe that the Council should have invited the Dominican Republic to participate . . . given that our country will be the one most affected if this crisis spills over Haiti’s border” (S/2021/637).

Non-members whose requests are rejected may post on their Permanent Mission and/or Foreign Ministry websites the statements they intended to make. A non-member may also post complaints on social media, together with their statements, and such posts can often attract considerable attention, especially from that state’s nationals.
 

7) Is there a limit on how many non-members having similar positions may participate?

On several occasions, the Russian delegation has complained that too many European Union members were being invited to participate in Council meetings on Ukraine. Because EU states have the Common Foreign and Security Policy, Russian representatives have argued that these countries’ statements duplicate each other and therefore fewer should participate in each meeting (see, for example, S/PV.9269 and S/PV.9421).

This argument, however, loses sight of the fundamental principles of non-member participation. To repeat, Rule 37 provides for non-members to be invited to participate “when the Security Council considers that the interests of that Member are specially affected, or when a Member brings a matter to the attention of the Security Council in accordance with Article 35 (1) of the Charter.” (our italics) And the Council’s S/2017/507 presidential note provides that “non-Council members that are directly concerned or affected or have a special interest in the matter under consideration” may be invited to meetings held under the “Debate” format (our italics). From these codifications, as well as the related Charter articles, it is evident that the criteria for participation do not focus on the expected content of a statement by a non-member, but rather on establishing how closely the non-member is connected to the matter under discussion. And Council practice over the decades has generally given a liberal interpretation to these criteria.

For example, during the years when Southern Rhodesia, Namibia and apartheid South Africa were under consideration by the Council, it was not uncommon for large numbers of non-members to participate in such meetings, particularly those belonging to the then Organisation of African Unity. In 1963, sixty-three non-members participated in a meeting on Namibia (S/PV.2451). Meetings on the Middle East historically have also involved the participation of significant numbers of non-members, and not only those with immediate geographic proximity.

Nonetheless, it remains within the Council’s prerogative to decide to limit the number of non-member speakers at a given meeting, provided there is consensus, or near-consensus, among Council members to do so.


8) How late can a request to participate be submitted?

The timing of requests to participate is another modality not covered by Rule 37. Ideally, non-members will have submitted requests to participate by the evening before a planned meeting, which is the time when a Council presidency normally finalizes with the other Council members the following day’s programme. However, late requests are not precluded, provided all Council members are informed and asked for their views, such that any late invitation will be extended, in the language of Rule 37, as “the result of a decision of the Security Council”, that is, not by the President unilaterally.

At a 31 July 2024 meeting, held at the request of Iran, on the killing of Hamas leader Haniyeh in Tehran, the Russian representative, in his capacity as Council President, first extended invitations to participate to non-members Iran, Israel, Lebanon and Syria. He then stated, “I also want to invite the representative of Iraq. A request from this country was submitted at the last moment and I suggest to make an exception. Barring any objections from members of the Council, we intend to satisfy that request, given the specificity of the situation and the growing escalation in the region.” After no objections were voiced, the invitation to the Iraqi representative was extended (S/PV.9696).

Invitations to participate have even been extended after a meeting is well underway, particularly if, during the meeting, a speaker has made a comment about a non-member to which that state wishes to respond. This occurred on 18 June 2024 at a meeting on the Sudan. At the outset of the meeting, the Sudan was the only non-member invited to participate. But after statements had been made by all briefers, Council members, and the Sudan, the Council President (Republic of Korea) extended a late invitation to participate to the United Arab Emirates. Upon being given the floor, that representative made clear the reason for his request: “I thank you, Mr. President, for giving me the floor to respond to the ludicrous allegations made by the representative of the Sudan” (S/PV.9659).[13]

However, not all late requests are accepted. In February 2019, the representative of Colombia wrote to the Council President (Equatorial Guinea) protesting “in the strongest terms” the decision not to allow him to take the floor at a meeting on the situation in Venezuela. The Colombian representative contended that the President’s “decision to deny my delegation the right to respond in a national capacity to the false and reckless claims directed specifically against my country” by the Venezuelan representative “has led to the dissemination of biased information to the members of the Security Council and to the public around the world” (S/2019/197).


9) Under what circumstances can a non-member participate via video-teleconference?

Prior to the restrictions caused by COVID on in-person meetings, very occasionally a high-level official of a non-member participated in a Council meeting via video-teleconference (VTC). One instance occurred on 20 May 2014, when Mali’s Minister for Foreign Affairs, African Integration and International Cooperation participated in a meeting via VTC (S/PV.7179).

After COVID cases diminished and the Security Council returned fully to in-person meetings, some Council members, notably the Russian Federation, held that participation by all representatives of Member States should thereafter be made in person in the Chamber. Nonetheless, some exceptions still occurred. For example, at meetings in January and May 2022 on Myanmar, Cambodia’s Deputy Prime Minister and Minister for Foreign Affairs participated via VTC (S/PV.8959 and S/PV.9049).

Following the Russian invasion of Ukraine, that country’s President Zelenskyy participated via VTC in Council meetings in April and June 2022. However, at a meeting in August 2022, when the Council President (China) stated that he had received a letter from Ukraine requesting that Zelenskyy be invited to address the Council via VTC, the Russian representative objected to that mode of participation. He stated that when Zelenskyy had addressed the Council via VTC twice before, those instances had been presented as exceptions not creating a precedent. But to accept a third such request could no longer be considered an exception, and would run counter to the principle that all non-members invited to participate in Council meetings during non-COVID times should do so in person. He also contended that because other non-members had been denied the right to participate via VTC, the Council could not follow a double standard.

The representative of Albania countered that the justification for Zelenskyy’s VTC participation remained the same as before: The Council could not reasonably demand that he leave his country while it was under foreign invasion, a circumstance beyond his control. In the procedural vote that followed, thirteen Council members voted in favour of allowing VTC participation, with the Russian Federation voting against, and China abstaining (S/PV.9115). (See related article on this website) Thereafter, Zelenskyy participated via VTC not only in that meeting, but also in later meetings held in September and November 2022 (S/PV.9138 and S/PV.9202).

It has thus been established that VTC participation by Rule 37 invitees, while rare, may still be allowed under exceptional circumstances if either there are no strong objections by Council members, or a minimum of nine Council members are willing to vote in favour.


10) Should non-members speak before or after Council members?

Rule 27 of the Council’s Provisional Rules of Procedure provides that “The President shall call upon representatives in the order in which they signify their desire to speak.” This rule makes no apparent distinction between Council members and non-members. However, as specifically as concerns non-members, paragraph 33 of presidential note S/2017/507 provides that “The Security Council agrees that, when non-members are invited to speak to the Security Council, those who have a direct interest in the outcome of the matter under consideration may speak prior to Council members, if appropriate.” This paragraph makes clear that the speaking order of non-members is to be decided by the Council on a case-by-case basis.

For many years, when a meeting was requested by a Council member under Rule 2, or by a non-member under Rule 3, the practice was to first hear that member. In fact, at a meeting held in 1950, the Council President (Yugoslavia) stated that it was “the established practice in the Security Council – a practice confirmed by a series of precedents – that the delegation requesting a meeting of the Council should be called upon to speak first” (S/PV.519). However, paragraph 26 of S/2017/507 applies this practice only to Council members. Under the heading “Speaking order of Council members”, it provides that “In cases when an unscheduled or emergency meeting is convened, the President may also adjust the list so that the delegation having requested the meeting can speak before the other Council members in order to present the reasons for convening the meeting.” (our emphasis)

In current practice, the general trend has been to place a non-member, even one which requested a meeting, after Council members on the speakers list. A recent case of this occurred at the meeting held at the request of Iran on 31 July 2024 on the killing of Hamas leader Haniyeh in Tehran, at which the Iranian representative was given the floor only after all Council members had spoken.[14]

When two or more non-member parties to a situation are invited to participate, it is established practice that all of them should speak together, sequentially, either before Council members, or after. This was seen in the 15 September 2022 meeting requested by Armenia, at which both that state and Azerbaijan spoke after all Council members (S/PV.9132).

In 2023, the placement of government officials of Ukraine on the speakers list ahead of Council members was twice challenged by the Russian representative:

The first of these challenges came at a meeting on 24 February 2023 when the Foreign Minister of Malta, chairing the meeting, prepared to give the floor first to Ukraine’s Foreign Minister. The Russian representative accused the Maltese Minister of creating “an egregious precedent whereby the representatives of Ukraine in the Council are given the kind of privileges that are denied to representatives of other regions of the world.” He cited meetings at which high-level officials from the Central African Republic, Mali, Colombia and the Dominican Republic each spoke after Council members. He then asked, “Do you understand, Sir, how it will look in the eyes of the rest of the world if you decide today to give [Ukraine’s Minister] the privileged right to speak at the beginning of the meeting?” This, he said, would be in violation of what he called “the prevailing practice under rule 37, that is, delegations take the floor after the members of the Council.” In response, Malta’s Minister noted that there had been other cases of high-level officials speaking first. He recalled specifically that “the Foreign Minister of Serbia spoke before the members of the Security Council at least twice, during the past two meetings” on Kosovo. Ukraine’s Minister then spoke before Council members.

A second challenge came at a meeting on 20 September 2023 when the Prime Minister of Albania, chairing the meeting, prepared to give the floor first to Ukraine’s President. After the Russian representative objected, the Albanian Prime Minister affirmed that “inviting President Zelenskyy to speak before Council members is amply in line with paragraph 33 of S/2017/507”, which provides that “when non-members are invited to speak to the Security Council, those who have a direct interest in the outcome of the matter under consideration may speak prior to Council members, if appropriate”. He added that “giving the floor to President Zelenskyy would provide an opportunity for Council members and the other Member States … to respond to his remarks.” Each side on this disagreement made three more statements, setting out differing views as to relevant practice and precedents, with the Russian representative again arguing against preferential treatment for Ukrainian officials. Thereafter, Zelenskyy was given the floor before Council members (S/PV.9421).


Concluding observations

As pointed out in La Charte des Nations Unies: Commentaire article par article, 3e édition,[15] inviting non-members to participate in Council meetings can serve dual purposes: Participation can enable Council members to become more aware of the position of states affected by the Council’s consideration and decisions on a particular matter; and participation can also enable affected or interested states to make their positions known to the Council.

As detailed above, the relevant Charter articles and Rule 37 of the Council’s Provisional Rules of Procedure set out general standards for non-member participation in Council meetings. In applying these standards to specific cases, the Council has shown a wide variety of approaches, such that it is hard to point to fixed practice with respect to the details of participation. This has left room for controversies, especially when non-member participation issues occur in the context of substantive matters which are politically divisive for the Council. In this regard, as is clear from the cases described above, many of the recent controversies relating to non-member participation have arisen in the context of the Council’s meetings on Ukraine, with the Russian Federation particularly opposed to participation arrangements which, in its view, would accord to Ukraine preferential treatment.

The Prime Minister of Albania, chairing a meeting on Ukraine in September 2023, made a point worth considering. After the Russian representative objected to Ukraine’s President speaking before Council members, the Prime Minister indicated that “notice of the planned speaking order was given to all Council members in advance.” He asserted that accordingly “it would have been preferable had this procedural matter been resolved at a technical level prior to the start of this open debate so that we would have been able to proceed immediately to the substance of our deliberations today.” When disagreements over the details of non-member participation surface in the Council Chamber, rather than being resolved beforehand through consultations, it opens the Council to criticism that it allows itself to be tied up in petty squabbles that are “New York-centric” – that is, meaningful only at Headquarters – while the substantive work before the Council is far more pressing.

It is evident from the opposing positions taken by different Council members on various aspects of non-member participation that in this connection, the respective institutional memory of Council members does not always line up. This being the case, there is room to work out, however informally, some general guidelines for more consistent practice, or at least a basic common framework for taking decisions related to participation.

​

(This update supplements pages 243 to 249  and 259 to 264 of the book.)

___________________________

​[1] See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, para. 24.
[2] In addition, thematic debates usually attract a large number of requests pursuant to Rule 37.
[3] Simma, Bruno, et al. (eds.), The Charter of the United Nations: A Commentary, 3rd edn, 2 vols., Oxford University Press, Oxford, 2012, p. 1058.
[4] Cot, Jean-Pierre, Pellet, Alain, and Forteau, Mathias (eds.), La Charte des Nations Unies: Commentaire article par article, 3e édn, 2 vols, Economica, Paris, 2005, p. 1009.
[5] He stated that he had also wished the Council to invite the representative of the European Union to participate pursuant to Rule 39.
[6] After the meeting took place on 9 July, the Ukrainian representative posted on Twitter/X an explanation for this. Addressing the Russian representative by name, he said “you are not a legitimate president of the Security Council, and I will never address you as one.”
[7] Pursuant to Article 27(2) of the Charter, procedural decisions require the “affirmative vote of nine members” and the veto does not apply.
[8] In 2000, there was a procedural vote concerning the participation of the representative of the Federal Republic of Yugoslavia, but that invitation to participate would have referred neither to Rule 37, nor Rule 39 governing participation by individuals, owing to controversies surrounding the status of that country at the UN.
[9] A formal procedural vote, like the one held in 1948 regarding Czechoslovakia, would be unlikely in the context of today’s Council practice.
[10] Simma, Bruno, et al. (eds.), The Charter of the United Nations: A Commentary, 3rd edn, 2 vols., Oxford University Press, Oxford, 2012, p. 1058.
[11] Cot, Jean-Pierre, Pellet, Alain, and Forteau, Mathias (eds.), La Charte des Nations Unies: Commentaire article par article, 3e édn, 2 vols, Economica, Paris, 2005, p. 1016-17.
[12] Article 2(7) reads, “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.”
[13] After the Sudanese representative requested to make a further statement in response, the UAE ambassador was also allowed to speak for a second time.
[14] One notable exception to this usual speaking order is that at meetings on the Palestinian question, if Palestine is invited (without reference to Rule 37 owing to the fact that it does not have full UN membership), and Israel, these two representatives routinely speak before Council members.
[15] Cot, Jean-Pierre, Pellet, Alain, and Forteau, Mathias (eds.), La Charte des Nations Unies: Commentaire article par article, 3e édn, 2 vols, Economica, Paris, 2005, p. 1005.​