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The penholder system and the rule of law in the Security Council decision-making: Setback or improvement?

Published online by Cambridge University Press:  25 November 2019

Marie-Eve Loiselle
Marie-Eve Loiselle*
Affiliation:
University of New South Wales, Law Building, UNSW Law, UNSW Sydney NSW 2052, Australia Email: [email protected]
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Abstract

This article analyses the decision-making process of the UN Security Council when it adopts outcome documents, such as resolutions, Presidential statements and press statements. It is commonly assumed that because of their veto power and permanency China, France, Russia, the United Kingdom, and the United States have greater influence than their elected counterparts in shaping those outcomes. In recent years, that control has been strengthened by the penholdership system. Under this practice, one or more members, usually France, the United States or the United Kingdom (P3), take leadership over a situation on the agenda of the Council. When ‘holding the pen’ a member often decides what action the Council should take, then drafts an outcome document that it negotiates with other permanent members before sharing the text with elected members. This article explores the development of this practice and its impact on the respect for the rule of law in the Security Council’s decision-making process. It argues that, while concentrating power in the hands of the P3, hence diminishing transparency and the opportunity for all members to participate in the decision-making of the Council, at the same time the penholdership system also provides an avenue to strengthen elected members’ influence in ways that promote respect for the international rule of law.

Keywords

elected membersinternational organizationsthe rule of lawUnited Nations Security Councilworking methods
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 33 , Issue 1 , March 2020 , pp. 139 - 156
Copyright
© Foundation of the Leiden Journal of International Law 2019 

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References

1 Waldron, J., ‘Is the Rule of Law an Essentially Contested Concept (In Florida)?’, (2002) 21(2) Law and Philosophy 137 CrossRefGoogle Scholar, at 139; B. Z. Tamanaha, ‘The History and Elements of the Rule of Law’, December 2012 Singapore Journal of Legal Studies 232.

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3 The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, UN Doc. S/2004/616 (23 August 2004), at 4.

4 Krygier, supra note 2, at 23.

5 Chesterman, supra note 2, at 342.

6 Ibid., at 360.

7 Krygier, supra note 2, at 14.

8 Farrall, supra note 2, at 31.

9 Ibid., at 40–1.

10 Ibid., at 40; see also J. Harrington, ‘Use of Force, Rule-of-law Restraints, and Process: Unfinished Business for the Responsibility to Protect Concept’, in Farrall and Charlesworth supra note 2, at 224.

11 Ibid., at 234.

12 Harrington, J., ‘The Working Methods of the United Nations Security Council: Maintaining the Implementation of Change’, (2017) 66(1) International & Comparative Law Quarterly 39 CrossRefGoogle Scholar, at 63.

13 Ibid., at 68–9

14 L. Sievers and S. Daws, The Procedure of the UN Security Council (2014), 393–8.

15 UN Charter, Art. 25.

16 UN Charter, Art. 27(3).

17 Sievers and Daws, supra note 14, at 373–459.

18 Provisional Rules of Procedure, UN Doc. S/96/Rev.7 (1983), Rule 31.

19 Ibid., Rules 34, 37, 38.

20 Sievers and Daws, supra note 14, at 394–5. The authors note that, in the early 1990s, the Secretariat wrote the the first drafts of resolutions on Cyprus. It was also involved in the drafting of resolutions for the renewal of the United Nations Disengagement Observer Force (UNDOF) mandate until 2010.

21 Ibid., at 267.

22 Provisional Rules of Procedure, supra note 18, Rules 32, 35.

23 P. Wallensteen and P. Johansson, ‘The UN Security Council: Decisions and Actions’, in S. von Einsiedel, D. M. Malone and B. S. Ugarte (eds.), The UN Security Council in the Twenty-First Century (2015), 27; C. Keating, ‘Power Dynamics Between Permanent Members and Elected Members’, in von Einsiedel, Malone and Ugarte ibid., at 139.

24 P. M. Romita, (Dis)unity in the UN Security Council: Voting Patterns in the UN’s Peace and Security Organ (PhD Thesis, City University of New York, 2018), 5–6. Other situations Romita identifies are Suez, the Democratic Republic of the Congo, Southern Rhodesia, and the Comoros, Grenada, Nicaragua, and Israel.

25 Banerji, M., ‘Institutionalization of the Non-Aligned Movement’, (1981) 20(3–4) International Studies 549 CrossRefGoogle Scholar, at 550; Ministerial meeting of the Non-Aligned Movement (Baku, Azerbaijan, 3–6 April 2018), www.nambaku.org/.

26 See Romita, supra note 24, at 81.

27 Ibid., at 7.

28 Ibid., at 11; I. Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council (2008), 119; Malone, D. M., ‘Eyes on the Prize: The Quest for Nonpermanent Seats on the UN Security Council’, (2000) 6 Global Governance 3 CrossRefGoogle Scholar, at 5.

29 Keating, supra note 23, at 140.

30 Ibid. Keating notes, however, that elected members eventually suffered important setbacks in term of their influence over the permanent members.

31 Whitfield, T., ‘A Crowded Field: Groups of Friends, the United Nations and the Resolution of Conflict’, (2005) 1 An occasional paper of the Center on International Cooperation: Studies in Security Institutions 1 Google Scholar, at 2.

32 J. Prantl, The UN Security Council and Informal Groups of States: Complementing or Competing for Governance? (2006), 252–3.

33 UN Doc. S/1999/165 (17 February 1999).

34 During the 2008 and 2010 open debates on the working methods, Burkina Faso, Costa Rica, Indonesia, South Africa, and Turkey noted that consultations with groups of friends could sometime be opaque and exclusive. See UN Doc. S/PV.5968 (27 August 2008), 4, 15, 18; UN Doc. S/PV.6300 (22 April 2010), 4, 7; UN Doc. S/PV.6300 (Resumption 1) (22 April 2010), 7. See also Whitfield, supra note 31, at 6.

35 UN Doc. S/PV.6300 (Resumption 1) (22 April 2010), 7.

36 UN Doc. S/1999/165 (17 February 1999).

37 M. D. Niemetz, Reforming UN Decision-Making Procedures: Promoting a Deliberative System for Global Peace and Security (2015), 115.

38 S. V. Einsiedel et al., ‘The UN Security Council in an Age of Great Power Rivalry’, (2015) 4 United Nations University Working Paper Series, at 4.

39 Ibid.

40 UN Security Council Expert, interview by author, 13 June 2018, New York.

41 UN Doc. S/PV.7539 (20 October 2015), 14.

42 UN Doc. S/PV.6870 (26 November 2012), 6.

43 Security Council Report, ‘In Hindsight: Emergence of the E10’, Monthly Forecast, 28 September 2018, available at www.securitycouncilreport.org/monthly-forecast/2018-10/in_hindsight_emergence_of_the_e10.php; UN Doc. S/PV.7539 (20 October 2015), 8; UN Doc. S/PV.7740 (19 July 2016), 24.

44 According to the Lowy Institute’s Global Diplomacy Index that compares the diplomatic networks of 60 G20, OECD, and Asian nations, in 2017, the United States had the most foreign embassies worldwide, at 167. China was second with 166, France third with 160, and Russia fourth with 149 embassies. The United Kingdom ranked seventh with 149 embassies. By comparison, only three of the elected members in 2018 figure on the index: The Netherlands has 103 embassies, Sweden 91, and Poland 88: Lowy Institute, ‘Global Diplomatic Index 2017 Country Ranking’, available at globaldiplomacyindex.lowyinstitute.org/country_rank.html.

45 During a 2015 open debate on the working methods of the Security Council, the representative of Angola noted that the penholdership system improved Council’s efficiency by ensuring that first drafts were issued by missions that have ‘consistent knowledge and a long background on the issues’. This comment, however, preceded his call for a greater involvement of elected members in the drafting of Council’s products. UN Doc. S/PV.7539 (20 October 2015), 8. See also UN Doc. S/2015/292 (27 April 2015), 26.

46 See 2005 World Summit Outcome, UN Doc. A/RES/60/1 (24 October 2005), para. 153.

47 E. C. Luck, UN Security Council: Practice and Promise (2006), 122.

48 Harrington, J., ‘The Working Methods of the United Nations Security Council: Maintaining the Implementation of Change’, (2017) 66(1) International and Comparative Law Quarterly 39 CrossRefGoogle Scholar, at 71.

49 Niemetz, supra note 37, at 115.

50 This is a recurring topic at the annual workshop Hitting the Ground Running, organized by Finland for incoming elected members and during the annual open debate of the Security Council on its working methods.

51 Einsiedel et al., supra note 38, at 4; Langmore, J. and Thakur, R., ‘The Elected but Neglected Security Council Members’, (2016) 39(2) The Washington Quarterly 99 CrossRefGoogle Scholar, at 107; UN Doc. S/2012/190 (4 April 2012), 17.

52 UN Doc. S/2014/213 (24 March 2014), 26; UN Doc. S/2016/506 (2 June 2016), 19.

53 UN Doc. S/PV.6672 (Resumption 1) (30 November 2011), 14.

54 UN Doc. S/PV.7539 (20 October 2015), 8.

55 Farrall, supra note 2, 31

56 UN Security Council Expert, interview by author, 13 June 2018, New York; UN Security Council Diplomat, interview by author, 14 June 2018, New York; see also UN Doc. S/2017/468 (1 June 2017).

57 UN Security Council Diplomat, interview by author, 14 June 2018, New York.

58 UN Doc. S/PV.8175 (6 February 2018), 17.

59 UN Doc. S/2016/506 (2 June 2016), 28.

60 Ibid.

61 UN Doc. S/2014/213 (24 March 2014), 20.

62 UN Doc. S/2016/506 (2 June 2016), 25.

63 UN Doc. S/PV.8175 (6 February 2018), 8. A similar comment was made by an interviewee in June 2018: UN Security Council Expert, interview by author, 13 June 2018, New York.

64 UN Doc. S/2016/506 (2 June 2016), 25.

65 UN Doc. S/2017/507 (30 August 2017), para. 80.

66 UN Doc. S/PV.6300 (Resumption 1) (22 April 2010), 20.

67 UN Doc. S/2017/507 (30 August 2017), paras. 79–82.

68 UN Doc. S/1999/165 (17 February 1999).

69 UN Doc. S/2014/268 (14 April 2014), para. 1(a).

70 Ibid., para. 1.

71 Ibid., para. 1(b).

72 Ibid., para. 1(c).

73 UN Doc. S/2017/507 (30 August 2017), para. 79.

74 UN Doc. S/2014/268 (14 April 2014), para. 1(c).

75 UN Doc. S/2017/507 (30 August 2017), para. 80.

76 Ibid., para. 81.

77 Ibid., para. 82.

78 UN Doc. S/2016/506 (2 June 2016), 20.

79 UN Doc. S/PV.7740 (19 July 2016), 10.

80 Ibid., at 10.

81 See Security Council Report, ‘Penholders and Chairs’, 6 August 2019, available at www.securitycouncilreport.org/un-security-council-working-methods/pen-holders-and-chairs.php; UN Doc. S/PV.8175 (6 February 2018): During this open debate on the working methods former SCR Director, Ian Martin, explained that ‘[N]ote 507 reiterates that any member of the Council may be a penholder, and also that more than one member may act as co-penholders. But in practice three permanent members remain today sole penholders on the overwhelming majority of country situations on the Council’s agenda’.

82 See UN Doc. S/PV.8175 (6 February 2018). During that debate, Belgium, Bolivia, Chile, Costa Rica, Equatorial Guinea, Ethiopia, Finland, Germany, Italy, Japan, Kazakhstan, Pakistan, Peru, Russia, Singapore, Sweden, and Switzerland, speaking on behalf of the Accountability, Coherence and Transparency Group, expressed their support for such a structure. See also UN Doc. A/72/849–S/2018/399 (4 May 2018), 8.

83 UN Doc. S/2015/292 (27 April 2015), 8.

84 See UN Doc. S/PV.8175 (6 February 2018), 3, 14, 28.

85 See UN Doc. S/2016/506 (2 June 2016), 25.

86 This model would have the added advantage of providing continuity and consistency between the work of a sanctions committee and the decisions of the Council on the corresponding situation. However, if, as some elected members are calling for, the burden of chairing sanctions committees is eventually shared with permanent members, then this configuration would not necessarily increase the capacity of elected members to draft documents.

87 Romita, supra note 24, at 181.

88 Ibid.

89 UN Doc. S/PRST/2013/15 (2 October 2013).

90 UN Doc. S/RES/2139 (22 February 2014).

91 UN Doc. S/RES/2165 (14 July 2014).

92 UN Doc. S/RES/2191 (17 December 2014); UN Doc. S/RES/2258 (22 December 2015); UN Doc. S/RES/2332 (21 December 2016); UN Doc. S/RES/2393 (19 December 2017).

93 UN Doc. S/RES/2016/2286 (3 May 2016).

94 Romita, supra note 24, at 194.

95 Ibid., at 195.

96 UN Doc. S/RES/2016/2286 (3 May 2016), paras. 1–2.

97 Ibid., para. 2.

98 Ibid., at 3.

99 UN Doc. S/PV.7685 (3 May 2016), 2.

100 UN Doc. S/RES/2334 (23 December 2016).

101 Egypt, the Arab Group’ s representative on the Council, was acting as a bridge between Palestine and the Council and was also holding parallel consultations with the Arab League on the issue: Security Council Report, ‘In Hindsight: Resolution on Israeli Settlements’, Monthly Forecast, 31 January 2017, available at www.securitycouncilreport.org/monthly-forecast/2017-02/in_hindsight_resolution_on_israeli_settlements.php; Security Council Report, ‘Vote on Resolution on Israeli Settlements’, What’s in Blue, 23 December 2016, available at www.whatsinblue.org/2016/12/vote-on-resolution-on-israeli-settlements.php.

102 B. Netanyahu, ‘The US Should Veto the Anti-Israel Resolution at the UN Security Council on Thursday’, 21 December 2016, available at twitter.com/netanyahu/status/811745158261837825?lang=en; D. J. Trump, ‘The Resolution being considered at the United Nations Security Council regarding Israel should be vetoed…’, 22 December 2016, available at twitter.com/realdonaldtrump/status/811928543366148096?lang=en.

103 Reuters, ‘U.S. Intended to Allow Passage of U.N. Draft Critical of Israel: Officials’, 21 December 2016, available at www.reuters.com/article/us-israel-palestinians-un-idUSKBN14B033?il=0.

104 Ibid.

105 UN Doc. S/PV.7853 (23 December 2016), 4.

106 Security Council Report, ‘Penholders and Chairs’, supra note 81.

107 Ibid.

108 Romita, supra note 24, at 197

109 Romita, ibid., at 189.

110 Ibid.

111 Ibid.

112 Ibid., at 197–8.

113 UN Charter, Article 32, Provisional Rules of Procedure, supra note 18, Rule 38.

114 Romita, supra note 24, at 186, 188.

115 Ibid., at 197.

116 ‘Syria: Does Russia always use a veto at the UN Security Council?’, BBC News, 16 April 2018, available at www.bbc.com/news/world-43781954. As of April 2018, Russia had vetoed 12 draft resolutions on Syria since the conflict started.

117 Security Council Report, ‘Syria: Monday Vote on Draft Resolution on Cross-Border and Cross-Line Humanitarian Access’, What’s in Blue, 13 July 2014, available at www.whatsinblue.org/2014/07/syria-monday-vote-on-draft-resolution-on-cross-border-and-cross-line-humanitarian-access.php.

118 Security Council Report, ‘In Hindsight: Resolution on Israeli Settlements’, supra note 101.

119 UN Doc. S.PV.6484 (18 February 2011); see, UN Doc. S/2011/24 (18 February 2011) for the text of the vetoed draft resolution.

120 Security Council Report, ‘In Hindsight: Resolution on Israeli Settlements’, supra note 101. See also Brookings Institution, ‘What’s New and What’s Not in the U.N. Resolution on Israeli Settlements’, 26 December 2016, available at www.brookings.edu/blog/markaz/2016/12/26/whats-new-and-whats-not-in-the-u-n-resolution-on-israeli-settlements/.