Chapter 7:   DECISIONS AND DOCUMENTS

Section 5:   Decisions to recommend appointments of Secretaries-General

 

Is the process for recommending an SG a “procedural” or a “substantive” question?

 

In recent public forums, a civil society participant has affirmed that proposals on how the Security Council handles the appointment process for the next Secretary-General will constitute “procedural” decisions.  This implies a belief that should the Council members become divided over the recommendation process, the matter can be resolved by a procedural vote for which, according to Article 27 of the Charter, the veto will not apply.

 

Another article on this website discusses in detail three scenarios by which change could be brought to the Council’s process for recommending candidates for Secretary-General to the General Assembly, that is, 1) voluntary agreement by the Council members reached by consensus; 2) a vote brought during a formal Council meeting; and 3) initiatives by individual Council members or the candidates themselves.  This article will focus on one aspect of a possible vote by the Council in a formal meeting:  the so-called “double veto”.

 

On pages 318 to 327, the book sets out at length the history of how the Council developed a general consensus as to which matters are considered procedural, and therefore regarding which the veto would not apply.  The list of those matters, recorded in the 1946-1951 and 1956-1958 Repertoire of the Practice of the Security Council, is as follows:

 

• Inclusion of items in the agenda

• Order of items on the agenda

• Deferment of consideration of items on the agenda

• Removal of an item from the list of matters of which the Council is seized

• Rulings of the President

• Suspension of a meeting

• Adjournment of a meeting

• Invitations to participate

• Conduct of business

• Convocation of an emergency special session of the General Assembly

   

   

This list is not identical to the list set out in the 1945 San Francisco Statement agreed by the permanent members, nor does it replicate the list of matters which General Assembly resolution 267 (III) of 1949 recommended that the Council should deem to be procedural.  It should be noted, however, that none of the three lists designated the process for appointing the Secretary-General as “procedural”.

 

As stated in the book, central to the development of the Council’s practice with respect to distinguishing between procedural and substantive matters has been the mechanism of the so-called “double veto”.  The “double veto” refers to a situation which can arise when it is not clear whether a proposal should be considered procedural or substantive.  Should it become necessary for the Council to vote to make this determination, that vote itself has been considered subject to the veto.  In other words, as stated by the representative of Poland at an early meeting of the Council, under Article 27 of the Charter, “whether the matter is procedural or not is not a procedural matter” (our italics).  It is because a single proposal can thus be twice subject to a veto that this scenario has been called the “double veto”.  In the language of the Council, the issue of whether a matter is procedural or substantive has been called the “preliminary question”.

 

In the Council’s history, most instances relating to the “double veto” arose with regard either to the establishment by the Security Council of a subsidiary organ or to the interaction between the Council and the General Assembly on a particular conflict situation.  After practice in both of these areas became more established, the “double veto” ceased to be an issue, and no cases have occurred since 1948.

 

However, the “double veto” could again come into play during the upcoming selection process for the next Secretary-General.  This could occur if consensus is not reached by the Council members on proposed changes to the process, after which one or more Council members might request that a draft resolution on the proposals be put to a vote.  If a permanent member voted against that draft resolution, the Council President would then need to announce whether or not the draft resolution had been adopted. 

 

If the Council President were to announce that the draft resolution was adopted despite the negative vote of a permanent member, this would indicate that in the President’s view, the draft resolution was “procedural”, since otherwise the permanent member's negative vote would have blocked the adoption.  Upon such a pronouncement by the President, the permanent member could take the floor to object to the President’s portrayal of the results of the vote.  By the Council's longstanding practice, the challenge to a President's pronouncement as to the procedural or substantive nature of a proposal cannot be resolved by a ruling of the President.  Rather, the President would be obligated to put to a vote the question of whether the draft resolution is procedural. 

 

On page 327 of the book, it is pointed out that it is possible for the “preliminary question” to be voted upon before or after voting has taken place on the main proposal:

 

“In some cases, members have preferred to await the outcome of the vote on the main

proposal before raising the ‘preliminary question’, since the vote and the President’s

interpretation of the results might obviate the need to take up the ‘preliminary question’.

In other cases, some Council members have insisted on first taking up the ‘preliminary

question’ when it has seemed that the way members would vote might depend on whether

the main question was regarded as a matter of procedure or of substance.”

 

In the Council’s practice, there has never been any requirement that a permanent member must give convincing grounds for its stance that a draft resolution is not procedural, and therefore subject to the veto.  Accordingly, even if a majority of the Council members were to state that they considered a draft resolution on the process for recommending the Secretary-General to be procedural, based on the Council’s early interpretation of Article 27 and its resulting practice, the matter would be determined solely by a vote to which the veto applies.  However, in one 1959 case, a President persisted with his determination that an issue was not substantive, and the Soviet Union was not able to prevail in its contrary view.  This case creates a window of uncertainty as to the present validity of the “double veto”. 

 

Given this uncertainty, although change to the Council’s process for appointing the Secretary-General might appear logically to fall within the category of “procedure”, it would seem that this determination cannot be established before a case of an actual vote on the Council’s nomination process in fact arises.