At
UN,
Opposition
to EU Special Rights in GA Grows, CARICOM Memo
Obtained
By
Matthew
Russell
Lee
UNITED
NATIONS,
April
28, updated -- The European Union is again seeking to gain
“special rights” in the UN General Assembly, demanding action on
May 3, representatives of the Caribbean regional group CARICOM and
others have complained to Inner City Press.
Back
in
September
2010, the EU's first push failed. Inner City Press interviewed
diplomats outside of the General Assembly hall. Bolivia's Permanent
Representative, for example, said the EU had just pushed too hard,
too fast, without enough consultation.
This
appears
to
be happening again. On April 28, Inner City Press asked
the
spokesman
for General Assembly President Joseph Deiss of
Switzerland about the controversy:
Inner
City
Press:
I have heard there is an upcoming vote on this request by
the European Union for, I don’t know, some people call it special
status for the status of the General Assembly, and I wanted to know
is that true, when is it scheduled to be taken up by the General
Assembly and is it your understanding that CARICOM (Caribbean
Community) and other regional groups have agreed to this, or is
still, is Mr. Deiss involved in any way in trying to resolve this?
Where does it stand?
[The
UN
transcript was updated with this, also explained to Inner City
Press in person:
"The
Spokesperson for the President of the General Assembly later clarified
that as Agenda item 120, the draft resolution A/65/L.64/rev.1 sponsored
by Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark,
Estonia, Finland, France, Greece, Hungary, Ireland, Italy, Latvia,
Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania,
Slovakia, Slovenia, Spain, Sweden and the United Kingdom on
“Strengthening the United Nations system” and titled “Participation of
the European Union in the work of the United Nations General Assembly”
will be tabled to the General Assembly on 3 May 2011. In the
absence of President Deiss, the meeting will be chaired by Ambassador
Zahir Tanin, the Permanent Representative of Afghanistan, in his
capacity as Acting President of the General Assembly."
The
answer given at the noon briefing was:]
Spokesperson:
First,
Mr. Deiss is the guardian and implements strictly the
procedures of the General Assembly. He doesn’t go beyond that. He
does exactly what he has to do. With regard to this special status,
I think we have to leave it to where we left it, which is the vote
that was passed in the General Assembly when this question was
formally brought to the floor in a very official fashion. Whatever
will come next, or whatever is being discussed in the corridors, this
is still a matter of speculation.
And
it is being discussed in the
corridors. On April 25, an EU
diplomat told Inner City Press that the EU hoped
for adoption by
consensus of its draft resolution, A/65/L.64/Rev.1 on May 3, and that
the EU
“doesn't understand” the objections of CARICOM.
It
is not that
difficult to understand. Members of CARICOM held a meeting on April 27
with 18
other "like minded states" that have issues with the
current draft of the EU Resolution. The like minded group met at
Venezuela's mission and included states from Latin America, the
Pacific Islands, Middle East, South East Asia, and Eastern Europe.
On
April 29,
CARCIOM will meet with the African Group at its request to explain
its position and to gauge support for/opposition to the EU
Resolution.
Inner
City
Press
has obtained an “explanatory
memo”
by CARICOM that
recounts the process.
Ban Ki-moon & Ashton, special EU rights not shown
Inner
City Press is publishing the memo (click here) and
this summary:
Explanatory
Memorandum
The
Member States of the Caribbean Community (CARICOM) have maintained
that any change to the participation of the European Union Observer
(EU Observer) in the work of the United Nations (UN) shall be
consistent with the UN Charter and the established practices and
rules of procedure of the General Assembly.
Notwithstanding
CARICOM’s stated preference for open transparent negotiations of
the whole, the CARICOM have engaged in good faith with the European
Union (EU) through open ended consultations as well as bilateral
consultations to develop a common understanding on the areas of
concern on the various iterations of the proposed draft resolution
including the most recently tabled A/65/L.64, with a view to
arriving at a consensus text.
Accordingly,
the CARICOM formally presented its initial proposed amendments on 9
March 2011. Subsequently, and following the publication of
L.64, it presented further amendments on 7 April 2011. On 11 April
2011, following an extensive consultation with the EU Rotating
Presidency and Acting Head of the European Union and based on a
preliminary understanding, it presented a final set of
amendments.
The abovementioned amendments are appended hereto as Annexes I, II
and III respectively.
I.
The initial proposal – 9 March, 2011 (See APPENDIX I)
In
its initial proposal, the CARICOM proposed amendments to the EU
resolution which was circulated by Belgium on 9 December 2010. Upon
its submission of those amendments, CARICOM requested the start of
open transparent and inclusive intergovernmental negotiations.
The
CARICOM proposals to the preamble focused on establishing, in a
factual manner, the premise for the General Assembly decision to
confer special privileges to a non state Observer.
The
proposals to the operative part and the Annex had as the main focus
the preservation of the intergovernmental nature of the United
Nations as set forth in the Charter and the rules of procedure of the
General Assembly. At the same time, the CARICOM attempted to
reconcile the core interest of the European Union for speaking
privileges with the established practice for the conferral of such
privileges to Observers, using the resolutions on the Holy See and
Palestine as the benchmarks for same.
The
new operative paragraph 1 reaffirms the intergovernmental nature of
the United Nations. By the amendments to the Annex,
specifically the new sub paragraphs (a) and (b), the EU Observer is
granted special speaking privileges comparable to speaking privileges
conferred to the Holy See and Palestine - privileges that are not
currently enjoyed by the EU Observer or any other non-State Observer.
CARICOM
also proposed the deletion of parts (d) (e) and (f) in the Annex to
the EU text on the following bases:
A.
Making proposals and amendments
Allowing
a non-state observer the unfettered right to make proposals and
submit amendments would be a novel and unworkable legal and
procedural concept. Non-states simply do not have such rights in the
General Assembly, and the EU has 27 Member States that already
possess the ability to exercise these rights either individually, or
on behalf of their fellow member states.
Allowing
a non state observer to independently make proposals and amendments
would also create awkward procedural issues. Rules 78 [120] and 81
[123] cannot be interpreted in the non-state context. Further, the
submission of proposals and amendments may result in voting or other
procedural actions, including the suspension of meetings. It would be
offensive to the intergovernmental character of the General Assembly
for non-state Observers to be allowed so much control over the
actions of a plenary of states.
B. Points of Order
There
is no precedent for allowing a non state observer entity to enjoy the
Member States’ right to raise points of order. The United
Nations currently has two established categories of points of order:
1.
The “unfettered” right
to raise
points of order, as contemplated by Rule 71 [113] of the Rules of
Procedure of the General Assembly. This right is extended to all
Member States of the General Assembly;
2.
The “circumscribed”
right to
raise points of order in particular narrowly defined proceedings.
This right has been extended, by resolution, to observer States at
the United Nations: Palestine (A/RES/58/314) and The Holy See
(A/RES/52/250).
The
EU proposal would effectively confer a third category of
points of order: that is, an “unfettered” right to raise points
of order extended to a non-state observer which observer is a
regional organization, comprised of UN Member States that already
independently enjoy that unfettered right.
For
the first time in the history of the United Nations,the EU proposal
would raise the specter of a non-state
using procedural rules to silence[1] or otherwise challenge
a Member
State of the UN.
C. Right of reply
Similarly,
extending the right of reply to a non state observer also raises the
specter of a non state challenging a Member State of the UN. In
particular:
1.
It would, for the first
time, grant
a non-state the right to “have the last word” in a debate with a
State.
2.
It would provide an
additional
voice for the 27 existing members of the European Union who already
posses the right of reply, and are all capable of exercising the
right.
3.
The concept of the EU
Observer
making only prepared and agreed statements on behalf of its
membership is incompatible with the exercise of the right of reply,
which is typically exercised extemporaneously and often delivered
without ability to consult with its membership.
Although
it is true that non-members (Palestine and the Holy See) enjoy the
right of reply, those cases are distinct from that of the EU Observer
for a host of reasons, including, inter alia, (i) The EU
Observer is not a state; (ii) the Holy See and Palestine resolutions
envisage speaking on a narrow range of issues, so the possibilities
for their exercise of the right of reply are similarly limited; (iii)
neither the Holy See nor Palestine have subsidiary members that can
exercise the right of reply on their behalf.
Second,
the EU representatives have advanced a conceptual framework that is
incompatible with the right of reply. The EU has explained that they
are simply transferring “spokespersonship” from the rotating EU
chair to the EU Observer. They have claimed that all statements made
by the EU observer are first discussed and agreed upon by all 27
members of the EU. As such, the EU is speaking not as an Observer,
but as a representative of 27 member states of the UN.
This
conceptual framework cannot withstand the reality of the
circumstances in which the right of reply is exercised. It would be
improbable for the EU representative to have the time to consult with
27 member states, draft a statement, and receive consent in
sufficient time to exercise the right of reply in many debates.
Allowing the unfettered right of reply would therefore exceed the
framework within which the EU Observer claims to operate. Indeed, it
would allow for “unscripted” and “unapproved” comments by a
non-state in response to comments by a UN Member State.
D.
EU Response
While
the EU indicated a willingness to consider some of the proposed
amendments to the preamble and operative part of the resolution, it
rejected the proposed amendments to the Annex.
II. L.64 and CARICOM Proposed Amendments of 7 April
( See
APPENDIX II)
Following
the publication of draft resolution A/65/L.64 (L.64), the CARICOM
proposed a further set of amendments, which was circulated to Member
States on 7 April 2011.
While
recognizing that the preamble and operative parts of the resolution,
as presented in L.64, had been amended to address a principal concern
for the preservation of the intergovernmental nature of the United
Nations, the Annex contained conflicting and contradictory elements
therewith.
The
CARICOM thus proposed a possible compromise between the EU Observer
request for speaking privileges similar to those of major negotiating
groups and the CARICOM’s interest in ensuring that any special
privileges granted to a non-state observer entity would not
significantly erode the intergovernmental nature of the UN or promote
the proliferation of observer entities with special rights and
privileges.
The
main compromises between the two positions would have been as
follows:
A.
Speaking Order in the General Debate and at Plenary
The
proposed compromise amendment in the Annex (replacing paragraphs (a)
and (b) with a new paragraph (a)) would seek to achieve the following
goals:
(a)
Maintain the priority
of Member
States and the intergovernmental nature of the United Nations by
establishing the EU Observer’s speaking privileges as limited to
“after the last Member State inscribed on the list”;
(b)
Allow for the
possibility of the EU
Observer moving up the list of speakers, providing (i) an EU Member
State is otherwise inscribed on the list; and (ii) that EU Member
State is willing to “swap” places with the EU Observer (i.e.
the EU Member State that swaps will now speak last)
In
practice, every list of speakers would initially place the EU
Observer after all UN Member States. The EU Observer could only “move
up” by swapping places with an EU Member State that is placed
higher on the list. The EU Observer would then speak in the spot
vacated by the EU Member State, and that EU Member State would move
to “last” place on the list of speakers.
Such
a mechanism would not tread so heavily on international law and the
Charter, in that the EU is still slotted by law as speaking after
Member States. It instead constitutes a revision of procedure and
protocol, in that normally, only equal levels can swap (president for
president, prime minister for prime minister).
That
revision would be limited to a trade off between an EU Member State
and the EU Observer for a change in speaking slot.
Consequently, only the speaking order of EU Member States’ would be
adversely affected by the introduction of the EU Observer, as opposed
to asking the entire UN membership to accommodate the “intrusion”
of an observer entity.
The
Lisbon Treaty mandates deference of EU Member States to the new EU
entity, but the wider UN membership is not similarly obligated.
B.
Making proposals and submitting amendments
For
the reasons already stated, CARICOM considered that amendments and
proposals should continue to be submitted by the individual Member
States of the EU in accordance with rules of procedure of the General
Assembly.
The
EU Representatives have claimed that they are merely seeking the
right to make “oral and/or informal proposals and amendments.”
However, the privilege they seek in draft resolution L.64 goes well
beyond that; the resolution simply says “permitted to make
proposals and submit amendments.” According to the Rules of
Procedure [Rule 78 [129]], “Proposals and amendments shall normally
be submitted IN WRITING to the Secretary-General. . .” As
such, without further qualification, the privilege sought in the
resolution is the privilege to submit oral amendments and proposals,
and thus spur voting thereon. Non-state observers who
themselves lack the right to vote should not be able to cause Member
States to vote.
C.
Points of Order
CARICOM
maintained its position on the point of order and continued to call
for its deletion.
D.
The Right of Reply
In
addition to the arguments put forward under the initial proposal,
CARICOM considered that advancing a right of reply would be legally
and procedurally inconsistent with the EU’s own resolution, as
drafted.
First,
Operative Paragraph 1 of the current draft resolution “Reaffirms that
the General Assembly is an intergovernmental body whose
membership
is limited to States which are members of the United
Nations.” (emphasis added).
The
current draft resolution then goes on to say, in the “chapeau” of
the Annex, that the rights sought by the EU Observer are “in
accordance with this resolution.”
Thus,
in reaffirming that the Membership of the UN is limited to states,
the non state EU Observer cannot simultaneously claim the right of
reply. Such a position would be in obvious conflict with the Rules of
Procedure of the General Assembly, which states:
Closing of list of
speakers,
right of reply
Rule 73 [115]
During the
course of a
debate, the
President may announce the list of speakers and, with the consent of
the General Assembly, declare the list closed. He may, however,
accord the right of reply to any member if a
speech delivered after he has declared the list closed makes this
desirable. (emphasis added).
Since
the Rules of Procedure limit the right of reply to members, and the
EU wishes their resolution to be considered in accordance with the
principle that members have to be “States which are members of the
United Nations,” then the EU Observer cannot claim the right of
reply.
III.
CARICOM Proposed Amendments of 11 April 2011 – ( See APPENDIX III)
After
an extensive discussion with the EU held on 11 April 2011, CARICOM
and the EU discussed a possible package that would allow for the EU
Observer to presents positions of the EU and its Member States as
agreed by them. Its inscription would be among the Member
States of the major groups for purposes of the work of the General
Assembly and other meetings convened under the auspices of the United
Nations. In the case of the General Debate, its inscription
would be consistent with the practice of participating observers
(Palestine and Holy See), having regard for level of representation
and the priority of Member States.
These
concessions would be balanced by limitations on the manner in which
the EU Observer would be able to engage with Member States in the
context of the negotiating process so as to preserve the principles
of the Charter relating to the sovereign equality of Member States
and the intergovernmental nature of the General Assembly. The
proposed limitations thus submitted are informed by the foregoing
arguments on the privileges relating to proposals and amendments,
points of order, and the right of reply. In this regard, the EU
Observer would be limited to making oral presentations of proposals
and amendments, and would be proscribed from making motions as to
procedures. The EU Observer would not be granted the privilege
to make points of order. The EU Observer would be limited to
rights of reply on EU positions, the exercise of which would also be
constrained in terms of the length of time the EU Observer would be
able to speak in response to a matter. The EU Observer would
not be able to exercise the right of reply in the General Debate or
any high level meeting or summit convened under the auspices of the
United Nations. Finally the EU Observer would not be able to co
sponsor resolutions or decisions.
On
13 April, the CARICOM proposals were rejected.
For
the May 3
session of the General Assembly, President Joseph Deiss will be out
of town, so Afghan Ambassador Tanin is slated to preside. Watch this
site.
Footnote:
Earlier
this
week when Inner City Press and another media sought to
cover a General Assembly session, UN Security forbade it, saying that
reporters are not allowed in front of the second floor GA Hall. Since
previously the press has been allowed there, Inner City Press
inquired with the UN Media Accreditation and Liaison Unit. MALU said
that UN Security was citing written rules which only allowed media in
the second floor of the Secretariat Building -- currently entirely
closed -- and not in the General Assembly.
While
told
that
this can be fixed, one wonders why longstanding access has recently
been problematized. Viewing the UN as a pyramid, the decision making
nodes are the President of the GA and the Secretary General. The
PGA's office tells Inner City Press they are for openness. But is Ban
Ki-moon's Secretariat? Watch this site.
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