Chapter 8:   SUBSIDIARY BODIES

Section 5a:   Fact-finding and other missions by Council members to the field

 

Is unanimity required for Security Council missions to the field?

 

After the Security Council members returned from their mission to Burundi in January 2016, the representative of the United Kingdom contended that the delay in agreeing the visit had “weakened our message at a time when sustained pressure was needed.”  This led him to wonder “whether we should move away from consensus in agreeing such visits”.  He added, “If some Council members do not want to come on a visit, let us not allow them to undermine the entire Council.”  Those remarks were supported by the representative of Ukraine (S/PV.7616).

 

In other discussions, some Council members have expressed regret that owing to a lack of unanimity, certain Council missions have not been undertaken at all.  For example, it was noted at the 2015 Finnish Workshop that a mission to Yemen failed to materialize owing to the objection of some Council members (S/2016/506). 

 

In this context, some Council members have asked whether, procedurally, there is a way to dispatch a mission in the absence of full consensus.  As recorded in the report of the 2016 Finnish Workshop, one member asserted that missions to the field “should be treated as procedural matters that did not require unanimity” (S/2017/468).

 

In the Council’s present practice, as confirmed in paragraph 120 of presidential note S/2017/507,

 

“As soon as the members of the Security Council agree to conduct a particular mission, the President

of the Security Council will continue to inform the Secretary-General of that decision with the intended destinations and dates, in order to request the support of the Secretariat in making all the necessary arrangements to facilitate the mission.” (our emphasis)

 

Also in present practice, the standard format by which this decision to conduct a particular mission has been transmitted to the Secretary-General has been a letter from the Council President.  As noted in the book (page 426),

 

“Whenever the Council President sends a letter, he or she is acting ‘under the authority of the Security

Council’, pursuant to Rule 19 of the Provisional Rules of Procedure, to represent the Council ‘in its

capacity as an organ of the United Nations’.  Accordingly, letters sent by the Council President are in

every case consensus documents.”

 

Therefore, so long as the Security Council uses the format of a letter by its President to convey the decision to conduct a mission to the field, that decision must be a consensus decision.

 

However, in the Council’s earlier practice, missions to the field were commonly decided through the adoption of resolutions.  (The last time this format was used for deciding a mission was in 1995 when, by its resolution 995 (1995), the Council decided to dispatch a mission to Western Sahara and the surrounding region.) 

 

Because a resolution can be adopted with fewer than 15 affirmative votes, reviving the practice of using resolutions to dispatch missions might appear to be a procedural approach by which a mission could be sent when unanimity is lacking among Council members.  However, this approach could potentially raise three of the most difficult issues of Council procedure:  the “preliminary question”, the “double veto”, and the “chain of events” theory.

 

If a draft resolution proposing to send a mission received at least nine affirmative votes, and any negative votes were cast by elected members and not permanent members, the decision would be considered adopted.  However, if one or more permanent members voted against the draft resolution, the Council would need to determine whether the proposal to send the mission was “procedural”, in which case the veto would not apply, or “substantive”, and therefore subject to veto.

 

Historically, the way in which such a determination has been made by the Council is through a procedure known as the “preliminary question”.  That is, in order to determine whether a proposal is “procedural” or “substantive”, a separate vote has been conducted to resolve this question, either before or after the vote on the principal proposal. 

 

However, what has complicated this matter is that the “preliminary question” has itself been considered as subject to veto.  This was the position set out in the “San Francisco Statement” adopted by the incoming five permanent members prior to the finalization of the UN Charter.[1]  Moreover, the “preliminary question” – i.e., the determination of whether a matter is procedural or substantive – was not included among the matters listed in the original and second volumes of the Repertoire of the Practice of the Security Council as, through practice, having come to be considered as procedural.[2]

 

Because a permanent member can veto a main proposal, and can also cast a deciding veto in determining whether or not the vote on the main proposal is substantive, this phenomenon became known as the “double veto”.  When the “double veto” occurred for the first time, in 1946, a representative of the Netherlands commented that “we come to the extraordinary position that a vast majority of the Council says this is a matter of procedure, but it is not a matter of procedure, because one member votes against it”.[3]  Nonetheless, in its early practice the Security Council respected the “double veto”, except for a 1959 case, when the Soviet Union was blocked by a ruling of the Council President (Italy) from an attempt to veto the “preliminary question”. 

 

As discussed in the book (pages 327 to 329), controversies over the “preliminary question” and the “double veto” arose most frequently in connection with determining whether the establishment of a subsidiary organ with investigative or fact-finding responsibilities was a procedural or a substantive matter.  This is particularly relevant to the question of dispatching Security Council missions to the field because, as noted in the book (page 493), during the time a mission is in process, it is considered to be a subsidiary organ of the Council.

 

Already in 1946, the question as to whether establishing a subsidiary organ with investigative or fact-finding responsibilities was a procedural or a substantive matter was highly divisive among Council members.  Under Article 29 of the Charter, the Council is authorized to “establish such subsidiary organs as it deems necessary for the performance of its functions.”  Because this Article is situated in Chapter V of the Charter, under the heading “Procedure”, it was argued by some Council members that a decision to establish a subsidiary organ was necessarily “procedural”, and therefore outside the scope of the veto, regardless of the organ’s mandate. 

 

However, the Soviet Union took an opposing position, basing its argument on the “San Francisco Statement” referred to above.  This Statement included a theory whereby a proposal which initiated a “chain of events” that might eventually require the Council to invoke Chapter VII enforcement measures would be subject to veto.  According to the Statement, among the decisions which might initiate such a “chain of events” were decisions to undertake an investigation.  By extension, the Soviet Union contended that any proposal to establish a subsidiary organ tasked with investigative or fact-finding responsibilities would be subject to veto.

 

These conflicting points of view among Council members as to whether establishing a subsidiary organ was a procedural or substantive matter were put to the test in a number of cases from 1946 to 1959 (see pages 327 to 329 in the book).  The arguments and outcomes of these cases were neither altogether consistent nor conclusive, partly because in some instances, the “double veto” came into play.  As a result, the establishment of subsidiary organs also was never included among the matters listed in the original and second volumes of the Repertoire as, through practice, having come to be considered as procedural.

 

The Council members have not, since 1959, had to confront this question, but not because it has been fully resolved.  Rather, the Council began to establish the most usual types of subsidiary organs in draft resolutions which also contain provisions on the substance of the situation being addressed, and which therefore are in any event subject to veto.

 

The argument that the dispatch of a mission is a procedural matter might have become more difficult to make since the adoption of the new presidential note on working methods, S/2017/507.  Paragraph 119 of the note states for the first time that in addition to the value of missions for understanding and assessment, these missions have value in “preventing escalation of particular conflicts or situations on the agenda of the Council” (our emphasis), indicating perhaps a more substantive role for missions than formerly was the case.

 

Given the present inability of Council members to arrange full missions when consensus is lacking, some Council members have called for a return to the use, as appropriate, of so-called “mini-missions”.[4]  The last of these occurred in 2012, when six Council members traveled to Timor-Leste.[5]  However, even “mini-missions” officially represent the Council as a whole, so if opposition arose to sending such a mission to a country or region, a draft resolution on sending the mini-mission would probably face the same problems as a full mission.

 

For different reasons, two Council members have suggested that Council members might travel on their own initiative to regions relevant to the Council’s agenda.  At a wrap-up meeting held in 2016, the representative of the United Kingdom stated

 

“perhaps there would be value in setting aside a week every four months or so where all Council

members would be encouraged to visit an area on our agenda, whether as a whole, or in a group, or

even individually.  This so-called ‘visiting week’ could allow us all to do some real diplomacy and outreach

and engagement and even prevention or resolution of conflicts.” (S/PV.7616)

 

At the same meeting, the representative of the Russian Federation stated that a collective approach “helps to improve the effectiveness of the Council’s activities, including such important tools as mission visits.”  In this context, he appeared to address the problem of missions which lacked full consensus when he asserted that “there is nothing to prevent individual Council members from visiting countries they are interested in in their national capacity.”  Implied in this comment, however, is that such visits should be funded by the governments concerned, rather than through the UN budget, and this might prove unacceptable to otherwise interested Council members.

 

Overall, it appears that the adoption of a draft resolution to dispatch a mission to the field might be a workable approach if any opposition to the mission came from an elected member.  However, there is a high probability that if a permanent member were opposed to a draft resolution on dispatching a mission, that member would invoke the “preliminary question” in an effort to determine that the question was substantive, and then proceed to try to block the sending of the mission through a “double veto”.  Consequently, it is likely that for the foreseeable future the Council will continue to decide its missions on a consensus basis, given that there appears to be no straightforward alternative that would bypass the risk of enmeshing the Council members in divisive procedural or budgetary complexities. 

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[1] UNCIO, San Francisco, 1945, Vol. XI, document 852, III/1/37(1): “Statement by the Delegations of the Four Sponsoring Governments on Voting Procedure in the Security Council”, later joined by France.

 

[2] Chapter IV, “Voting”, Parts I and II, Repertoire of the Practice of the Security Council, 1946-1951; and Repertoire 1956-1958.

 

[3] S/PV.49 of 26 June 1946, p. 415.

 

[4] See statement by the representative of New Zealand in S/PV.7703, and related article on this website.

 

[5] It should be noted that prior to the mission to Kosovo conducted in 2001, every Council mission to the field was dispatched with fewer than all Council members participating.