posted on Fri 27 Mar 2020 5:55 PM
New Security Council Working Methods in the midst of COVID-19

On Friday (March 27), the Security Council agreed to procedures for its meetings and adoptions, created to address the current difficulty of meeting physically due to the impact of the COVID-19 pandemic. The new measures were set out in a letter from Council president China, following several days of negotiations among Council members, and are expected to be in place until the end of April, at which point they will be reviewed.

A key consideration has been to ensure that the Council is able to conduct certain essential tasks. By the end of March, the Council has to renew the mandate of the UN Assistance Mission in Somalia, which expires on 31 March. It had also expressed its intention by 27 March to review and adjust the mandate of the Panel of Experts assisting the 1718 Democratic People’s Republic of Korea sanctions committee in resolution 2464; that mandate expires on 24 April. In addition, two other resolutions are expected to be adopted this month: on the UN/AU Hybrid Operation in Darfur (UNAMID) and on the safety and security of peacekeepers. While negotiating draft texts over email is not uncommon, Council members have been considering a new modality to adopt them if they were unable to meet in UN headquarters; in particular, it has explored written possibilities, including the idea of using presidential notes, which has not been pursued.

The new written adoption process establishes a 24-hour voting period, followed by three hours to provide written statements regarding the result of the vote and culminating within 36 hours of the start of the voting with a public announcement of the results of the vote.

Once a draft resolution is put in blue, the Council president is expected to circulate a letter with the draft resolution in an annex, informing members that the draft resolution will be put to a vote and requesting that they convey their vote in writing to the UN’s Security Council Affairs Division (SCAD) within 24 hours. Members that do not submit a vote during the voting period will be considered absent.The draft resolution will be translated into the UN’s six working languages by the end of the 24-hour period. Information that a vote is taking place will then be published in the Council’s programme of work. SCAD will transmit the result to the president of the Council once the 24-hour voting period is over. No later than three hours after the voting period has concluded, the president will circulate a letter to member states, concerned states and SCAD, listing members’ votes and the outcome. SCAD will circulate the adopted resolution following which members may provide a written explanation of vote (EOV) and concerned member states may make a written statement. The results and statements will be published on the Council’s website. Within twelve hours of the conclusion of the voting period, the president will hold a video conference to announce the outcome of the vote. A resolution adopted through this written procedure will have the same legal status as one adopted in the chamber.

This written voting procedure is one of several adjustments that the Council has made to its working methods to ensure business continuity since the partial closure of the UN headquarters on 16 March as part of the Secretary-General’s measures to address COVID-19.

Since the second week of March, together with the Secretariat, members have been testing the use of video teleconferencing. Following the postponement of all meetings the week of 16 March, this week two informal meetings – on the UN missions in the Democratic Republic of the Congo and Libya – were held via video teleconferencing. However, Russia has opposed having these VTC meetings be considered as official meetings of the Council or listed in the UN Journal. The reasons Russia has given reportedly range from the legal to the operational, including the difficulty of having simultaneous interpretation in all six languages in a virtual set-up. Its opposition to the use of video teleconferencing to conduct formal Council business extended to the use of VTCs for virtual adoptions. Until this week, it was also insistent that members should continue to meet in the Council chamber. Most members are uncomfortable with meeting physically, given concerns that this would expose to added risk both the Council members and the UN Secretariat staff needed to support such a meeting.

The letter from the Council president also outlines the process for video conferences of Council meetings. The Council president will announce an upcoming video conference 24 hours in advance to the public and member states. It appears that there will be open video conferences where members whose interests are affected, in line with rule 37 of the provisional rules of procedure, may ask to participate. There will also be closed video conferences that will only involve Council members. In order to ensure transparency of the open video conferences, the Council president will circulate the statements of briefers and Council members that want their statements circulated.

In trying to devise a way of meeting during this period, members would have referred to both the UN Charter and the provisional Rules of Procedure. Under rule 5 of the provisional rules of procedure, meetings of the Security Council “shall normally be held at the seat of the United Nations”. Rule 5 also states that any member of the Security Council or the Secretary-General may propose that the Security Council should meet at another place and that should the Council accept any such proposal, “it shall decide upon the place, and the period during which the Council shall meet at such place”. This possibility that the Council can meet elsewhere is also clearly rooted in the UN Charter’s article 28 (3), which provides that the Council may hold meetings other than at the seat of the UN. It seems the “seat of the UN” can be interpreted as the city where the UN is located or “seated” rather than just as the UN premises. In this context, an argument can be made that virtual meetings that are based in New York would be seen as being held at the seat of the UN.

Since the establishment of the UN headquarters in New York, the Council has met in four other locations: Addis Ababa (1972); Panama City (1973); Geneva (1990); and Nairobi (2004). The meetings in Addis Ababa, Panama City and Nairobi were agreed to through a resolution, while a presidential statement was used to obtain agreement for the Geneva meetings.

While there is now agreement to hold informal video conferences that appear to mirror the Council’s public meetings and consultations, agreement on holding official meetings remains elusive. If members were inclined to pursue this further, one option would be to consider a resolution proposing that the Council conduct its business remotely through VTCs for a limited period of time—a “sunset clause”. If members agree that this is a procedural matter, such a resolution would pass if it obtains nine votes, and the veto would not apply.

If the procedural nature of the matter is not accepted, the question of whether holding a meeting virtually is a procedural one could be put to a vote. Such a vote would be substantive, thus allowing for a veto. In this scenario, a vote on the draft resolution proposing remote Council work would most likely also be vetoed, if members maintain their current positions. There is no precedent for a vote on this specific issue. General Assembly resolution 267(III) of 14 April 1949, in which the General Assembly recommended to the Security Council to consider as procedural several types of issues listed in detail in an annex, which the Council considered but took no action on. Among the issues considered as procedural was the holding of meetings other than at the seat of the UN. However, it seems that Council members are hoping to resolve this issue consensually without having to resort to a procedural vote.

If this period of COVID-19 related social isolation and physical distancing continues, the question may arise as to whether the Council would be in violation of rule 1 of the provisional rules of procedure, which states that “the interval between meetings shall not exceed fourteen days”. The Council last met on 12 March to renew the mandate of UN Mission in South Sudan and to hold a briefing on Yemen, followed by consultations. In the past, particularly in the early days of the Council when there may not have been agenda items that required immediate consideration, it was not unusual for the president of the Council, following consultations with members, to waive rule 1. Over time, it became customary for the president to assume consent unless a member raised the issue. In more recent years, there has occasionally been an interval of longer than 14 days between the last meeting of the year and the first meeting of the new year, but the issue of violations of rule 1 was not raised (most recently, when the Council did not meet from 21 December 2019 to 7 January 2020).[1] It therefore appears unlikely that any member will raise this as a significant issue during this current crisis.

Like many the world over the Council has been confronted with a set of unexpected challenges. These new working methods will allow the Council to continue to discharge its mandate. However, if movement and gatherings are restricted for a prolonged period, Council members may need to consider a more streamlined process for both adoptions and meetings. In particular, in the coming months, crisis situations that may arise from this period of global change caused by this pandemic may require faster response times.

 

[1] For more detailed background on this see SC Procedure’s 27 March Update: https://www.scprocedure.org/chapter-4-section-6