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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.

  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.