The case for a new interpretation of Article 31 of the Charter of the United Nations
1. The present paper is being submitted for consideration by the Open-ended Working Group on the Question of Equitable Representation and Increase in the Membership of the Security Council. It provides argumentation for a new interpretation of Article 31 of the Charter of the United Nations.
Article 31
2. Article 31 reads as follows:
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. 1/
3. The use of Article 31 has expanded dramatically in recent years and is practically never challenged. If a Member wishes to take part in a Security Council debate, its request is granted and the Member is invited as a matter of course. However, this applies only to formal Security Council sessions (which is where "discussions" in the meaning of Article 31 are deemed to occur). The country's statement is heard out by Security Council members; but as a rule it has no bearing, no impact on the document under discussion—which will have been prepared, every "I" dotted and every "t" crossed, during previous informal consultations. It is hard to recall when, under the impact of a Member's statement, the draft document that was on the table would in any way have been amended. 2/
4. However, the intent of the founding fathers was no doubt different. In mentioning participation in "discussions", their intent certainly was that Security Council non-members should have a chance to participate in discussions preceding the formulation of Council opinions: even perhaps in drafting the language of resolutions and, by extension, of presidential statements. Article 31 was viewed as a compensatory rule tempering the fact that Article 23 governing the composition of the Security Council violates the otherwise cherished sovereign-equality principle. The participation provision of Article 31 recognizes not only the need for the Security Council to be fully informed but also the legitimate interest of Member States in participating in the discussion. 3/
Informal consultations
5. These days, substantive discussions take place of course not in formal sessions but during informal consultations of the Council. However, informal consultations are mentioned neither in Chapter V of the Charter nor in the Security Council's provisional rules of procedure. This is not an accident: informal consultations take place behind closed doors, and in the early years of the United Nations, Members felt an aversion towards secret diplomacy, an aversion that in the case of smaller and medium-sized countries bordered on outrage. 4/ Provisional rule 48, which postulates that the Council usually meets in public is, for example, a direct outcome of those sentiments.
6. In fact, in the early years of the United Nations, "informal consultations" actually meant nothing more than that—that is, informal consultations among several, but seldom all, Security Council members. (They were actually often included to outfox the opposition rather than to seek consensus on the Council.) Informal consultations as we understand them today, that is, consultations of all members of the Council, were introduced only under Secretary-General Dag Hammarskjold, when, in November 1955, Ambassador Entezan of Iran, then President of the Council, turned the customary but hitherto annual President's lunch honoring the Secretary-General into a monthly event, a practice that continues to this day. These were the modest beginnings of today's regular informal.
7. AT the time, they served as a vehicle to get around the deep freeze accompanying the coldest period of the cold war. However, they were held with increasing frequency during the 1960s, during the ebb and flow of dentate. In those days, they were informal indeed, with 11 delegations plus Secretariat staff and a few interpreters crammed into the President's office. With the increase in 1965 of Council membership to 15 and with the expansion of the number of official languages, the President's office got tighter and tighter. Consultations were not only informal but also physically uncomfortable. Finally, in 1975, the construction of a separate room was authorized (allegedly initiated by Secretariat staff and the interpreters).
8. Thus the present informal-consultations arrangement can be conveniently dated to the completion of the consultation room in 1978 and to the introduction of simultaneous interpretation to its proceedings. From one year to the next, from 1977 to 1978, the number of informals jumped three times and the time spent in them more than quadrupled. 5/
Secrecy
9. The presumption of secrecy concerning the goings on during informals is their strength but also their weakness. In actuality, no secrecy obtains: the Secretary-General and his immediate circle is provided with an unvarnished and even scathing daily report of the discussion, for one. More importantly, it has become customary for members of participating delegations to report to Council non-members about the proceedings, sometimes blow by blow. A delegation with enough personnel resources can consequently learn about every comment made behind the closed doors. Those who need to find out, do. In fact, this method of reporting is sometimes actually considered a safety-valve against demands that informal consultations be made more accessible.
10. Nevertheless, it is assumed that even the mere semblance of secrecy, or at least of confidentiality, allows Council members to speak more freely, to be more amenable to arguments of their colleagues, to be less formal.
11. On the other hand, it can be argued that the secrecy of these proceedings, which generates a certain mystique, combined with their frequency (which peaked in 1995, with 273 meetings) has greatly contributed to the chasm of mistrust between members and non-members of the Security Council. Questions of legitimacy and representatively of the Council, and certainly questions of its transparency, would lose some of their edge if the Council's proceedings were not perceived as being quite so secretive. 6/ This is where a reinterpretation of Article 31 comes into the picture.
Article 31 applied to informals?
12. What would happen if Article 31 were interpreted so as to allow the participation of Security Council non-members in informal consultations, whenever a question affecting their own country was on the agenda? Making this possible is the thrust of the present proposal. The idea causes discomfort. Some feel that the presence of a representative of a country under review would inhibit the discussion, that Council members would feel constrained in expressing themselves freely, in short, that the assumed great advantages stemming precisely from the secrecy of informal consultations—however fictitious it is—would be lost. This is perhaps the greatest objection heard against proposals to revisit the usage of Article 31.
13. However, during 1994 and 1995, the Security Council experienced an important object lesson of how the application of Article 31 to informal consultations would function in practice. One country's various affairs came up in informals practically every month. And all along, a representative of that country attended most of these discussions, for , coincidentally, that country itself was a member of the Security Council during those years: Rwanda.
Rwanda
14. In 1994 and 1995, the Security Council adopted more than 30 resolutions and presidential statements concerning various aspects of the situation in Rwanda. In addition, in 1995 it dispatched a fact-finding mission to the country.
15. The gamut of issues concerning Rwanda was so extensive as to be possibly unparalleled in the history of the Council. Consider its breadth: the implementation of the Arusha peace agreement between the Hutu Government and the Tutsi Rwanda Patriotic Front (RPF); the changing mandates and strengths of the United Nations Observer Mission Uganda—Rwanda (UNOMUR) and the United Nations Assistance Mission for Rwanda (UNAMIR) peace-keeping operations; the genocide; imposing an arms embargo, and relaxing it a year later; refugees and displaced persons; establishing an international war crimes tribunal, and electing its members; post-war reconstruction efforts; issues affecting neighboring countries—and this list may not even be exhaustive. In addition to the diversity of issues, the intensity of the Security Council's preoccupation with Rwanda, as measured by the number of documents adopted, was also extraordinary, exceeded during the years in question only by its preoccupation with the former Yugoslavia—which of course includes not one but several countries.
