1. Introduction
This article charts the evolution of the penholdership practice that has developed in the Security Council over recent decades and its impact on the Council’s respect for the rule of law. According to the practice, one member of the Council, usually France, the United Kingdom, or the United States (the P3), individually or collectively take ownership of an issue on the Council’s agenda. The member holding the pen initiates all actions by the Council on that issue, with a particular focus on drafting the outcome documents, such as draft resolutions and presidential statements. Because penholders are overwhelmingly permanent members, some critics characterize the penholdership as the practice that has the most pervasive effect on the ability of elected members to shape the decisions of that body.
This contribution argues that, although the penholder system has undoubtedly consolidated the control of the permanent members over the Security Council’s drafting process, the codification of the practice, with language calling for greater transparency and participation by elected members in the process, could potentially strengthen the latter’s influence, and therefore the Security Council’s respect for the rule of law. The article proceeds in five sections. The first explains the meaning and relevance of the rule of law in the context of the Security Council. The second provides background on how decisions, especially resolutions, are initiated, drafted and negotiated among Council members. It offers an overview of the evolution of that process since the end of the Cold War and analyses the impact of the penholdership system on elected members, as well as its relationship to the rule of law. The fourth section analyses the codification of the penholdership practice in recent Presidential notes S/2014/268 and S/2017/507. Section 5 identifies recent initiatives by Council members to take ownership of the pen on issues on the agenda of the Council. The article concludes with a discussion on the implications of those initiatives for E10 influence and respect of the rule of law in the Council’s decision-making process.
2. The rule of law and Security Council decision-making
The rule of law is an elusive concept and its definition remains contested.Footnote 1 A significant point of contention is between scholars who argue for a ‘thin’ version of the rule of law versus those who favour a ‘thick’ understanding. A ‘thin’ rule of law approach concentrates on the formal modalities of the law-making process and legal and political institutions. By contrast, a ‘thick’ rule of law model also includes substantive notions of justice.Footnote 2 Former UN Secretary-General Kofi Annan’s definition of the rule of law encompasses elements of both formal (thin) and substantive (thick) definitions:
It [the rule of law] refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.Footnote 3
Whether one adopts a formal or substantive approach to the rule of law, its application to the political organs of the United Nations is complex because the legal framework under which these organs operate, unlike in the domestic context, provides very few checks and balances. Indeed, the rule of law is a concept generally associated with nation states. International organizations, and the Security Council in particular, lack the legal institutions, separation of powers, and monopoly of force usually present within a state. Still, even in domestic settings these institutions are sometimes absent or deficient.Footnote 4
In seeking to apply the concept to international organizations, some scholars suggest concentrating on the core functions of the rule of law. Simon Chesterman argues that the objectives of the rule of law are to prevent the arbitrary exercise of power and ensure the law applies to all equally, including the sovereign.Footnote 5 With regards to the Security Council, this could mean removing some of the structural inequalities that permanent members enjoy over decision-making.Footnote 6 Martin Krygier similarly identifies the objectives of the rule of law as to foreclose the arbitrary exercise of power.Footnote 7 Jeremy Farrall notes that a common feature of any rule of law model is to ensure ‘political power is exercised in accordance with a principle rather than in an arbitrary or self-interested manner’.Footnote 8
In the specific context of the Security Council, Farrall proposes a ‘pragmatic rule of law model’ that would ‘infuse’ the existing paradigm of Security Council decision-making with greater respect for key rule of law principles: transparency, consistency, equality, due process, and proportionality.Footnote 9 The objective of the model is to initiate changes to the practice of the Security Council from within the Council rather than from external regulatory mechanisms or through amendments to the UN Charter. As Farrall notes, ‘the path to influencing the decision-making behaviour of the Council … lies in influencing the decision-making behaviours of the Council’s member states’.Footnote 10 One way of achieving greater respect for rule of law principles, for instance, is through changes to the working methods of the Security Council that concern its deliberations.Footnote 11 Indeed, most calls for reform of the working methods of the Council underline the need to palliate deficits of openness, transparency, participation, and interaction in its decision-making procedure.Footnote 12
Analysing the penholdership system from the lens of the rule of law is justified because the practice directly affects how the Council is exercising its power. More particularly, the penholdership is criticized for undermining at least two of the core rule of law principles identified by Farrall: equality and transparency. For this discussion, equality is primarily conceived as a requirement internal to the Council that all its members benefit from an equal opportunity to influence its decisions. As such, it intersects with the issue of participation of elected members in the decision-making process of the Security Council.Footnote 13 Transparency in the present context is closely related to the equality of the Council’s members and is understood as the conduct of open negotiation of the Council, so that all its members have access to deliberations, draft resolutions, and working documents to the fullest extent possible. The next sections trace how the evolution of the penholdership practice has impacted the Council’s respect for the rule of law, with special attention to the principle of equal participation and transparency.
3. The Security Council’s decision-making process
3.1 Legal and historical context
The Security Council’s decisions are reflected in its resolutions, presidential statements, and letters and notes by the President. Resolutions, because they are considered to bear more weight than other outcome documents, are usually the chosen format to express operational decisions, especially in relation to establishment, modification, and termination of peacekeeping missions.Footnote 14 Legally, resolutions are particularly significant as their operative paragraphs can be binding on the whole UN membership.Footnote 15 In order to be adopted, resolutions require the affirmative votes of nine members of the Council, including the affirmative votes, or abstentions, of the P5.Footnote 16 This means that any permanent member can veto a resolution by voting against it. Other outcome documents of the Security Council include statements by the President, notes by the President, and letters by the President. These are consensus documents; therefore, their adoption does not follow the rules set by Article 27 of the UN Charter.Footnote 17
According to the Council’s Provisional Rules of Procedures, decisions of the Council on substantive matters are initiated through a written proposal to the members of the Council, for instance, a draft resolution or an amendment to a draft resolution.Footnote 18 Any member of the Council can submit a draft resolution to a vote, with or without the support of another member. In addition, non-Council members can, if they have been invited to a meeting under Rule 37 of the Provisional Rules of Procedures, that is, when their interests are affected by an issue discussed by the Council, submit a draft resolution. However, the draft must be submitted to a vote by a member of the Council.Footnote 19 There are also instances of proposals emanating from the UN Secretariat.Footnote 20
Even though the practice of penholdership, recognizing the prerogative of one or a few Council members (usually the P3) over an issue on its agenda, dominates the contemporary decision-making process within the Council, there is no reference to the role of the penholder in the Provisional Rules of Procedures. Rules 32 and 35 of the Provisional Rules give certain prerogatives to the member, referred to as the ‘mover’, who puts a document, such as a draft resolution or motion, to a vote.Footnote 21 For instance, Rule 32 provides that the mover may refuse that parts of a ‘motion’ or ‘draft resolution’ be voted on separately, and Rule 35 grants the mover the right to remove it at any time before a vote.Footnote 22 Yet, nowhere is it provided that an issue should be within the purview of a single member or group of members of the Council, nor that permanent members should play a lead role in drafting documents, as is generally the case today.
From its creation until the early 1990s, the Security Council operated within the larger Cold War environment. The common belief is that divisions within the Council followed the fault lines of Cold War tensions, with China and Russia on the one hand, and France, the United Kingdom, and the United States on the other.Footnote 23 However, prior to the 1990s, the P3 were not always closely aligned. Rather, they were divided on several issues. For instance, the United States tended to disagree with France or the United Kingdom where the colonial interests of the latter two were at stake and on issues pertaining to South America.Footnote 24
Interestingly, another reason for the disunity among the P3 was the influence of the Non-Aligned Movement (NAM) at the United Nations. The NAM emerged in 1961 at the Belgrade Summit. It currently comprises 120 members states that are united by shared values and interests with regards to anti-colonialism and anti-imperialism, economic aid, and the need to remain independent in international relations.Footnote 25 Since none of the NAM countries is a permanent member of the Council, their influence in drafting outcome documents depended largely on NAM members holding elected Council seats. Due to the sheer number of NAM’s membership, it was likely that one or more NAM countries would be sitting at the horseshoe table at any given time.Footnote 26 Indeed, during the Cold War, NAM members were active in drafting and presenting resolutions where their interests aligned and achieved some successes on issues such as Southern Rhodesia and South Africa.Footnote 27
Some argue that the influence of the elected members on the Council waned in the post-Cold War period due to a greater cohesion among the P5.Footnote 28 Former Permanent Representative of New Zealand to the United Nations from 1993–1994, Colin Keating, was still positive about the role of elected members during his time on the Council, when ‘elected members found a refreshing degree of freedom to express opinions, take initiative, and even lead on important agenda items’.Footnote 29 According to Keating, elected members played a crucial role in breaking stalemates arising in the Council between permanent members on issues such as Bosnia-Herzegovina and Rwanda.Footnote 30
Nonetheless, in the mid-1990s the permanent members gradually consolidated their decision-making power. They increasingly developed decisions in closed discussions, leaving the elected members with a sense of isolation. In this environment the phenomenon of ‘groups of friends’ emerged, giving something of an alternative voice to the E10 and the larger membership. These groups were constituted by countries united by a common interest on a particular issue on the Council’s agenda.Footnote 31 Some well-known groups included the Friends of the Secretary-General on El Salvador (the first such group), the Group of Friends on Haiti, and the Core Group on East Timor. At the dawn of the twentieth century, their presence around the Council increased, along with their influence in initiating and negotiating Council products. Jochen Prantl notes that these groups have had several effects on the Council decision-making process, including mitigating the dominance of permanent members and heightening the voice of stakeholders on a given situation on the body’s agenda.Footnote 32
However, not everybody supported these groups unreservedly. While Presidential note S/1999/165 of 17 February 1999 recognized their beneficial role in ‘helping to promote the settlement of particular crisis situations’,Footnote 33 Council members sometimes perceived efforts by groups of friends to be a form of power grabbing from more powerful or organized groups.Footnote 34 This was especially the case when non-Council states were privileged over Council members in the decision-making process leading to Council outcomes.Footnote 35
This explains why, while welcoming contributions by groups of friends to resolutions and presidential statements, Presidential note S/1999/165 also recalled that it was ‘important that all members of the Security Council be allowed to participate fully in the preparation’ of these products’ and that ‘sufficient time should be allowed for consultations of all members of the Council and for their own consideration of the drafts, prior to action by the Council on specific items’.Footnote 36 Groups of friends still exist but their number has declined since the late 2000s, a period that coincides with the emergence of the penholdership practice.
3.2 The penholdership: Emergence of a new practice
In the last decade, permanent members have consolidated their decision-making power within the Council through the penholder system, whereby one or more Council members are assigned leadership over a situation on the Council’s agenda. The model emerged in 2006, when France, the United Kingdom, and the United States together negotiated and drafted resolutions concerning nuclear proliferation in the Democratic People’s Republic of Korea and Iran. Since then, the practice has extended to almost all issues on the Council’s agenda.
The member holding the pen on an issue benefits from an unofficial monopoly on the situation that gives it authority to initiate the decisions and actions of the Council regarding that situation.Footnote 37 The penholder usually determines whether the Council should issue a resolution, or any other outcome document, to address an issue. Von Einsiedel, Malone and Ugarte write that, under the current practice, deals are rarely ‘pre-cooked outside the P3’ (France, the United Kingdom, and the United States).Footnote 38 China and Russia for their part prefer to adopt a ‘wait-and-see’ tactic which the veto power, and therefore the ability to block any decision they disagree with, affords them.Footnote 39 A P3 member typically produces a draft text that it discusses with other P3 members before sharing it, first with China and Russia, and then with the ten elected members. But as one expert puts it, the term penholder is misleading because the penholdership goes beyond leadership for the drafting of outcome documents. Rather, it provides a member with leadership on the whole situation.Footnote 40 As the representative of Venezuela remarked, penholdership gives a member the power to ‘decide what, how and when mandates are created and considered’,Footnote 41 with added privileges such as the right to speak first during a meeting on an issue for which one holds the pen, regardless of whether or not the member is introducing a draft document during the meeting.Footnote 42
Justifications for the penholder system centre around considerations of efficiency and continuity. Permanent members have greater resources; their missions are better staffed, and they have expertise and knowledge that elected members often lack due to their ongoing presence on the Council.Footnote 43 Their permanent seat on the Council means they have an uninterrupted engagement in the Council’s agenda items. By contrast, some elected members take on their responsibilities on the Council with little or no experience of the body itself and may be unfamiliar with the issues on its agenda.
Another perceived advantage of the permanent members’ leadership is the scope of their resources outside the Council. The P5 are large states, with significant diplomatic resources as opposed to most small and some medium states. This is useful when information is needed to guide a decision on a country-specific issue. Indeed, the permanent members count among the countries with the highest number of foreign representations.Footnote 44 This dense diplomatic coverage means that permanent members are better able to source information on a greater number of situations to inform their decisions on country-specific issues.Footnote 45
This does not negate the fact that there are circumstances when the input of elected members may be more useful than that of the permanent five. Some elected members have significant resources which they can draw on, when participating in the decision processes of the Security Council. This is the case for Germany and Japan, which have diplomatic coverage comparable to that of the permanent members. Smaller states also have the potential to provide information that would benefit the Council. For instance, an elected member may possess circumstantial knowledge of a situation due to its geographical or diplomatic proximity with a state, such as Jordan in relation to Syria.
More importantly, the involvement of non-permanent members in the decision-making process of the Council can contribute to making it more representative of the broader membership and increase its legitimacy, a core principle of the rule of law model proposed by Farrall.Footnote 46 Often the issues of representation and legitimacy are analysed through the lens of membership reform, but scholarship now recognizes that the enlargement of the Council is not the only way, and perhaps would not be enough in itself, to make the Council representative of the broader UN membership. As Edward Luck notes, ‘[e]ven an awkwardly large Council would not be representative unless new working methods to assure greater transparency, accountability and inclusiveness were also introduced’.Footnote 47
3.3 Critiques of the penholdership
There is a general sense that penholdership is preventing the views of the whole Council from being reflected in its outcome documents, undermining the Council’s representativeness and therefore the vision of a collective body, representing the interests of the whole UN membership. Indeed, the main criticisms levelled against the system are all concerned with the lack of transparency and representativeness regarding the decision-making process of the Council. Some members and experts of the Council view the penholder innovation as undermining efforts towards these goals, deepening inequalities between the P5 and the E10. Joanna Harrington suggests that the penholder practice raises legitimacy concerns because ‘certain topics or situations “belong” to one particular Council member’ that can then dictate outcomes on that issue.Footnote 48 Niemetz contends that granting penholder responsibilities to elected members would increase the Security Council’s transparency and promote greater representativeness by allowing outside inputs to permeate the Council’s P5 inner circle.Footnote 49 This is echoed by Council representatives, especially elected members, who regularly call for a reform of the practice in discussions on the working methods.Footnote 50
Indeed, given the nature of the penholder system and the institutional design of the Council, it is primarily the elected members that suffer from the lack of inclusion and transparency during negotiations of Council outcomes. The penholder’s responsibilities are too heavily weighted towards the permanent members. In most cases, but especially with resolutions and presidential statements, it is only once the permanent members agree on the text of a document that the draft is shared with elected members, sometimes only hours before a vote on the draft is scheduled. By that time, elected members may feel pressure not to propose changes that would upset the compromise reached, sometimes arduously, among the P5.Footnote 51 This creates the perception that the Council is composed of two classes of membership, where elected members are treated as ‘second-class citizens’ merely assisting the permanent five.Footnote 52 In the system’s early days, former members of the Security Council lamented that elected members were regularly excluded from negotiations held among a few permanent states.Footnote 53
The penholder situation led six elected members in 2015, Angola, Chile, Jordan, Malaysia, New Zealand, and Spain, to produce a joint statement in which they criticized the penholdership for diminishing the opportunity of elected members to engage in the drafting of Council’s products, ‘significantly increas[ing] the risk of Council products being crafted in a way that serves only the interests of the permanent members. In those respects, the system cuts across the principle of collective responsibility that underpins the Charter’.Footnote 54 It also undermines the principled exercise of political power in a manner free from considerations of self-interest.Footnote 55
Despite these concerns, the situation has not improved. There is still a lack of transparency and communication among all 15 members of the Council, especially between the permanent members and elected members.Footnote 56 Permanent members hold bimonthly discussions and, at meetings, will often confer among themselves for a few minutes before inviting the elected members in the room.Footnote 57 On the negotiation of draft documents, Ambassador Anatolio Ndong Mba, the Equatorial Guinea UN representative, contended during the 2018 open debate on the working methods of the Council that short time limits for discussing draft resolutions mean that when a draft finally reaches elected members, they are told the deadline for suggestions and amendments has passed. Hence, they are left with ‘only two options—accepting a fait accompli and finding a reason to vote in favour; or abstaining or voting against, since sometimes they agree with the substance of the issue but not with the language used’.Footnote 58 At other times, propositions by elected members are rejected on the basis that what they propose is not ‘agreed language’.Footnote 59 Under these conditions it is difficult for elected members to take the initiative, be creative, and bring new language to draft resolutions negotiated among permanent members.Footnote 60
P3 domination of the penholdership system also exacerbates the uneven geographic distribution of responsibilities and representation over country-specific issues, and therefore the legitimacy of the Council’s decisions. Indeed, Western countries hold a quasi-monopoly over the pen on issues pertaining to Africa. In 2014, only one penholder was from that continent despite African situations constituting 70 per cent of the situations on the Council agenda.Footnote 61 The question of who held the pen on African issues was raised at the 2016 Hitting the Ground Running workshop, when one participant noted that often members holding the pen on situations in Africa have a ‘past history on the continent, which was unfortunate’.Footnote 62
The penholdership system is also a factor – among others such as the veto power – in the failure of the Council to take appropriate and timely actions when required in relation to the issues it oversees. As noted by the Russian representative in 2018:
Inactivity on the part of some penholders has often resulted in the serious deterioration of situations and the emergence of so-called forgotten crises. We should expand the circle of penholders and do so particularly by using non-permanent members.Footnote 63
For others, the problem is not so much who is holding the pen, but how it is being held.Footnote 64 Extending the penholdership to more elected members undoubtedly gives the elected member holding the pen more influence on that issue, but it does not ensure that negotiations are carried out inclusively among all 15 Council members as called for in Presidential note S/2017/507.Footnote 65 Indeed, a number of diplomats recognize that early talks among the permanent members may help expedite the Council’s actions. What they deplore is the insufficient consultation with the other members following this initial stage of negotiation.Footnote 66 These are two distinct facets of the question of participation and influence of elected members in the Council’s decision-making processes that are clearly distinguished in the recent Presidential notes S/2014/268 and S/2017/507 on penholdership. Indeed, these two notes articulate both the right of any member to be a penholder, and the need to enhance the participation of all Council members during the negotiation of a document.Footnote 67
4. Codification of the penholdership practice
The Security Council published its first note by the President calling for the full participation of all Council members in the preparation of the resolutions and Presidential statements in 1999.Footnote 68 However, decision-making within the Council did not improve to the satisfaction of most members, leading to note S/2014/268 in 2014, which was incorporated with notable amendments in note S/2017/507 in 2017, a compendium of most Presidential notes adopted on the working methods by the Informal Working Group on Documentation and Other Procedural Question.
4.1 Presidential note S/2014/268
Adopted on 14 April 2014 under Argentina’s chairmanship of the Informal Working Group on Documentation and Other Procedural Question (Informal Working Group), Presidential note S/2014/268 recognized for the first time the practice of penholdership.Footnote 69 It describes the practice as an informal arrangement that may in certain circumstances be justified for its efficiency and the continuity it provides in responding to agenda items. However, it also recognizes implicitly that the penholder system may undercut the participation of Council members in decision-making.
To mediate that risk and with a view to promote ‘wider participation of Council members in the drafting of Council products and their wider responsibility for drafting … enhancing the efficiency and transparency of the Council’s work’,Footnote 70 the note proposes a two-pronged approach that addresses (i) leadership in drafting Council products, and (ii) the negotiation and consultation process in the drafting of these products. It addresses the issue of leadership by emphasizing that ‘[a]ny member of the Security Council may be a penholder’ and encourages members to act as penholder(s).Footnote 71 It then considers the question of open and inclusive consultations and provides that:
[t]he members of the Security Council affirm their commitment to enhancing the participation of all members of the Security Council in the drafting of documents … To that end, the members of the Security Council encourage penholders, as early as possible in the drafting exercise, to ensure the exchange of information among all Security Council members and to engage in timely consultations with all Council members.Footnote 72
4.2 Presidential note S/2017/507
Note S/2017/507 is the third note adopted by the Informal Working Group under Japan’s leadership that brings together individual notes to address specific issues about the working methods of the Council. These notes aim to facilitate access to rules that govern the Council’s practice by collating them into one document. The first compendium note on the working methods was adopted in 2006 and was revised in 2010. The newest version of the note is by far the most detailed of these notes.
Note S/2017/507 repeats some of the language of the 2014 note specific to the negotiation and drafting of outcome documents, but it adopts a more directive and forceful approach to the penholder system. With regard to leadership, the note introduces the concept of co-penholders, observing that ‘[m]ore than one Council member may act as co-penholders, when it is deemed to add value, taking into account as appropriate the expertise and/or contributions of Council members on the subjects’.Footnote 73 This shift in approach was no doubt motivated by calls from elected members to be given greater opportunities to contribute to the initial stages of Council decision-making, along with the permanent members. The shift may also indicate that the penholder system is now so deeply entrenched that members believe it would be unrealistic to expect permanent members, and the P3 in particular, to cede control over the issues for which they hold the pen.
The 2017 note is also more forceful in advocating the need to increase the participation of elected members in the decision-making process of the Council and improve the quality of the consultation and deliberations on initial drafts with elected members. In 2014, the Council members merely ‘affirm[ed] their commitment to enhancing the participation of all members of the Security Council … [and] … encourage[ed] penholders’ to share and consult with the other members as early as possible in the drafting process.Footnote 74 By contrast, in 2017 Council members affirmed that all members ‘should be allowed to participate fully in the preparation’ of Council documents.Footnote 75 Moreover, the 2017 note called on penholders and co-penholders to be open and flexible during drafting exercises. For example, it encouraged penholders working on draft resolutions or presidential statements that were not ‘technical rollover[s] … to present and discuss the draft with all members of the Security Council in at least one round of informal consultations or informal-informals’.Footnote 76 It also encouraged penholders, depending on the urgency of the situation, to provide sufficient time for all Council members to consider drafts placed under a silence procedure, and it recognized the right of any Council member to ‘request extension of and/or break the silence if further consideration is required’.Footnote 77
Despite the codification of more inclusive working methods regarding the drafting of Council outcomes in Presidential notes S/2014/268 and S/2017/507, implementation remains an issue.Footnote 78 In 2016 the representative of Uruguay, criticized ‘[the] culture of dominance by the five permanent members that permeate[d] all Council activities’ noting that ‘when an elected member presides over the Council, the President cannot sign a simple procedural letter without subjecting that text to the prior scrutiny of permanent members … even when the letter is just a template’.Footnote 79 As for the participation of elected members in the drafting of documents, he bluntly noted that ‘that does not happen either’.Footnote 80 As the penholder’s list for 2019 indicates, little progress was made in that respect in the subsequent three years, since the P3 still lead the majority of situations on the Council’s agenda.Footnote 81
Failure to prescribe a process for the allocation of penholdership and its review certainly contributes to the limited impact of the notes thus far on the repartition of penholdership responsibilities. Indeed, Presidential note S/2017/507 does not provide any indication as to how greater participation by all Council members in the preparation of the Council’s decisions can be achieved. Despite encouraging co-penholdership, the note remains silent as to the process by which this should be facilitated. Several elected members believe that a revision of the current penholder model to allow for elected members to be co-penholders with permanent members on situations on the Council agenda would help them shape Council outcomes.Footnote 82 This arrangement, it is argued, would promote more productive collaboration between permanent and non-permanent members and increase Council efficiency by bringing together the expertise, resources, and institutional memory of permanent members with the local knowledge and regional access of elected members.Footnote 83
Co-penholdership could be facilitated in several ways. First, co-penholder roles could be allocated based on the specific expertise of elected members, so that those with regional knowledge or strong experience relating to a country-specific issue could be granted co-penholder status for that situation.Footnote 84 This could ensure that Council decisions take into account the views of the member(s) most concerned or affected by a conflict and therefore increase the legitimacy of its decisions. Yet, it also raises the question of whether a member with national interests on a situation would use its position as penholder to steer a decision toward an end that would benefit its interests.Footnote 85 Second, chairs of sanctions committees could be co-penholders of the corresponding situation. Since all sanctions committees are chaired by elected members, this would mean that at least one elected member would act as co-penholder.Footnote 86
In the end, the note raises as many questions as it answers. The note is silent about the process when encouraging members to take the pen, whether an issue is already informally assigned to a penholder or not. Does it encourage members to take the pen as they see fit, even when another Council member is recognized as the penholder on the issue? If that is the case, then it can be argued that this contradicts the whole penholder system that the note legitimizes. Despite these uncertainties, in recent years some elected members have taken the lead over situations on the Council agenda, and in doing so, have infused decision-making with more transparency and equality. The following section surveys recent cases where elected members were successful in influencing Council decisions by taking the pen, both in situations where there was already an assigned penholder(s) and on new issues.
5. How to take the pen and hold it
One way for elected members to have their say in the Council decisions is to ‘take the pen’ on an issue, but as noted above, it is easier said than done. Permanent members tend to hold on to their prerogative as penholders, which in turn makes it hard for elected members to carve themselves a space for initiating draft outcomes documents, especially with regards to country-specific situations. However, some elected members have managed to take the pen to exert influence on the Council’s decision-making process, despite facing resistance from the permanent members and other stakeholders. Recent examples include Australia, Luxembourg, and Jordan on the issue of humanitarian access in Syria; Egypt, Japan, New Zealand, Uruguay, and Venezuela on the protection of health care workers and facilities during armed conflicts; and Egypt, Malaysia, New Zealand, Senegal, and Venezuela regarding Israeli settlements in Palestinian territory, including East Jerusalem.
5.1 Humanitarian access in Syria
Since 2013, concerted efforts by various elected members to promote humanitarian assistance to Syria have succeeded in brokering the cross-border and cross-line delivery of aid to millions of people in Syria. In 2013, Australia and Luxembourg, concerned by P5 inaction, took the initiative to develop a draft resolution that would facilitate the delivery of humanitarian aid within Syria.Footnote 87 Aware of the sensitivities surrounding the issue, their approach was gradual. First, they sought consensual agreement on a press release that called for the safe access for aid organizations within Syria.Footnote 88 After six months of negotiations, delayed by the August 2013 chemical attack in Ghouta, Australia and Luxembourg successfully reached agreement on the adoption of a Presidential statement, on 2 October 2013, urging all parties to facilitate the delivery of aid in Syria.Footnote 89 A few months later, on 22 February 2014, Australia and Luxembourg, joined by Jordan as the third penholder, succeeded in negotiating Resolution 2139 demanding that all parties, in particular the Syrian authorities, allow humanitarian access in Syria across conflict lines and borders, and noting the Council’s intention to take further steps in case of non-compliance.Footnote 90
The three penholders pushed their efforts even further that same year with Resolution 2165 authorizing cross-border and cross-line access for the UN and its partners to deliver humanitarian aid in Syria without state consent and establishing a monitoring mechanism to oversee the delivery of humanitarian relief aid consignments for 180 days.Footnote 91 Reconciling the position of the penholders and the P3 with that of China and Russia was the greatest challenge faced by the penholders on the Syria humanitarian track. To that end, elected members were able to devise creative solutions that would meet the positions of both sides halfway. The proposition by the penholders to establish a notification mechanism that requires the UN to notify Syria of the content of all humanitarian convoys is one example of a compromise made to secure the vote of Russia. The resolution adopted on 14 July 2014 has been renewed every year since.Footnote 92
5.2 Resolution 2286 on the protection of health care workers and facilities during armed conflicts (2016)
Similar dynamics to those described above can be observed in relation to Resolution 2286 (2016) on the protection of health care workers and facilities during armed conflicts. In 2016, five elected members jointly drafted the first Council resolution on the protection of health care workers and facilities during armed conflicts.Footnote 93 It took several months for the penholders – Egypt, Japan, New Zealand, Uruguay, and Venezuela – to negotiate a text acceptable to all Council members, especially the permanent ones. One of the difficulties concerned the level of political sensitivities that surrounded the issue, since four of the five permanent members had recently been, or still were, associated with coalitions involved in attacks against health care facilities.Footnote 94 In fact, as Romita underlines, the motivation for the draft originated from concrete crises on the Council agenda, including the situation in Afghanistan, the Central African Republic, South Sudan, Syria, and Yemen.Footnote 95
The lengthy work and negotiations on a draft text started in early January 2016 and concluded with the adoption on 3 May 2016 of Resolution 2286. In its operative paragraphs, the resolution strongly condemns acts of violence against the victims of attacks and the medical and humanitarian personnel and facilities and demands that parties to armed conflicts comply with their obligations under international law.Footnote 96 The resolution asks parties to respect and protect medical and humanitarian actors, and their facilities, means of transport, and equipment.Footnote 97 It further demands that parties to a conflict facilitate the access of these groups to people in need, and help prevent violence against them.Footnote 98
In that instance, the penholders negotiated the text among themselves. It is only after this consultation process that the negotiations among all Council members started, at the beginning of April 2016. Once the penholders agreed on a draft version, they reached out to all Council members individually to get their viewpoints on the text. With these outreach efforts, the penholders secured the sponsorship of 85 UN member states for the draft resolution that was adopted unanimously by Council members.Footnote 99
5.3 Resolution 2334 on Israeli settlements (2016)
The final example concerns the adoption by the Council, on 23 December 2016, of Resolution 2334 on Israeli settlement activities in the Palestinian territory occupied since 1967, including East Jerusalem. The resolution ‘reaffirms’ that the establishment of these settlements ‘has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution …’ and ‘reiterates its demand that Israel immediately and completely ceases all settlement activities’ in that territory.Footnote 100
Unlike the previous examples, this draft resolution was initiated by a non-Council member, Palestine, with the support of Egypt, first, and eventually Malaysia, New Zealand, Senegal, and Venezuela.Footnote 101 On 21 December 2016, Egypt, joined by Malaysia, New Zealand, Senegal, and Venezuela as co-sponsors, circulated the text to all members and called for a vote the next day. The Israeli Prime Minister Benjamin Netanyahu and US President-elect Donald Trump took to Twitter to call on the Obama administration to veto the resolution.Footnote 102 Egypt’s President Abdel Fattah al-Sisi also discussed the draft resolution with Donald Trump over the phone.Footnote 103 During a call between the officials in Netanyahu’s office and the Egyptian President, the latter agreed to postpone the vote and indeed, cancelled it the next morning.
With Egypt stepping aside Malaysia, New Zealand, Senegal, and Venezuela decided to move forward, whether or not Egypt remained as co-sponsor, notifying Egypt in writing that they ‘reserve[d] the right to table the draft … and proceed to put it to vote ASAP’ even if Egypt decided not to proceed.Footnote 104 On 23 December, Egypt withdrew the text, which, following Rule 35 of the Provisional Rules of Procedure, enabled Malaysia, New Zealand, Senegal, and Venezuela to put the text to a vote without Egypt as a co-sponsor. The draft was adopted as Resolution 2334 (2016) that very afternoon and received 14 votes in favour, with the United States abstaining.Footnote 105
6. Implications for the E10 and the rule of law
The penholdership system has gradually consolidated the hold of the P3 over items on the agenda of the Security Council. Perhaps at no point in time has the ability of elected members been so restricted than since the emergence of penholdership. The codification of the penholdership practice in Presidential notes is ostensibly underpinned by a desire to open up the Council’s deliberative process to all Council members. Yet, five years after Presidential note S/2014/268, the P3 are still overwhelmingly holding the pen. By March 2019, there were 42 agenda items – divided into country-specific and thematic issues – led by one or more assigned penholders.Footnote 106 Out of 31 country-situations, 23 were led by one or more P3 members. Thus, very few fell under the purview of Russia alone or Russia and the United States. China had no role as penholder. Elected members oversaw four country-situations, either as sole penholder or sharing the task with another elected member. The proportion of elected members holding the pen on thematic issues was greater; out of 11 items, elected members were penholders on four while permanent members oversaw seven.Footnote 107
Still, changes to practice are often incremental and there are indications that the codification of the penholdership practice with language that maximizes inclusion of all members has created momentum for change in the Council’s decision-making that is more respectful of the rule of law. This is exemplified in the cases of humanitarian access in Syria, Resolution 2286 on the protection of health care workers and facilities during armed conflicts, and Resolution 2334 on Israeli settlements. In all three cases, elected members, likely emboldened by the recognition that any Council members may be a penholder, took the initiative to develop and negotiate solutions to situations on the Council’s agenda independently or in collaboration with the permanent members. In each of these examples, the means used by the penholders to successfully influence the Council’s decisions underscore greater respect for rule of law principles, including more equal participation of all members, and transparency. Their role has also served as a check against the potential arbitrariness of the Council’s decisions or inaction motivated by national self-interest.
Transparency: One of the greatest grievances against the penholder system is how it undermines the transparency of the Council’s decision-making process, often confining discussions on matters of substance to the small circle of permanent members. In each case discussed above, the penholders kept other members apprised of their work and the progress made toward a draft outcome. The penholders of Resolution 2286 informed the whole UN membership of their intention to draft a Council product on the protection of health care workers and facilities during a 19 January 2016 open debate of the Council on the protection of civilians. From January 2016 up until the end of March of that year, when they distributed a first draft to the whole Council, the penholders kept the other Council members abreast of their internal discussions during consultation. Each of the five penholders was responsible for maintaining communication with specific members and answering questions they may have had regarding the initiative.Footnote 108 Even during negotiations on Resolution 2165 on cross-border and cross-line access without Syria’s consent, where the penholders had chosen not to include other elected members in their initial talks with the P5, the leads were careful to keep the elected members in the loop during their internal deliberations.Footnote 109 Romita wrote that in this case the penholders made a concerted effort ‘to consult with their fellow elected members on their negotiations with the permanent members so they would be able to engage fully once the draft was circulated to the whole Council’.Footnote 110
Participation: In all the above examples elected members took the pen as part of a coalition, rather than single-handedly. This form of collaboration increases the number of participants in the Council’s decisions and the drafting of its products. To form a coalition necessitates active collaboration and negotiation between the members of that coalition. For instance, on the protection of health care workers and facilities the penholders, Egypt, Japan, New Zealand, Uruguay, and Venezuela, had to negotiate differences among themselves on the language of the draft resolution before presenting it to other members of the Council. This diversity, according to Romita, was a deliberate choice made by the five members, who aimed to demonstrate the broad support the resolution enjoyed among Council members.Footnote 111 The five penholders shared different views about accountability for attacks on health care facilities that they needed to mediate. While the majority of penholders wanted a reference to the International Criminal Court (ICC) in the resolution, Egypt, who is not a party to the Rome Statute, was against it. Concessions were made by the five penholders to only refer to Article 8 of the Rome Statute on war crimes.Footnote 112 While some experts may have hoped for a more, or less, forceful approach to accountability, that concession led to an outcome more representative of the whole Council membership.
Hence, coalitions tend to be more representative of the whole UN membership because they often comprise members from diverse geopolitical backgrounds with different worldviews. In the case of both Resolution 2286 on the protection of health care workers and facilities and Resolution 2334 on Israeli settlements – a group of penholders comprising Egypt, Malaysia, New Zealand, Senegal and Venezuela – elected members from various regions joined forced to influence Council decisions. Resolution 2334 on Israeli settlements is particularly interesting because elected members through their concerted efforts gave voice to Palestine, a non-Council member. Thus, the actions of those elected members contributed to strengthening the Council’s respect for the UN Charter and its provisional rules of procedures, which recognize the right of a non-member state to submit a draft resolution when its interests are affected by a dispute under consideration by the Council.Footnote 113
Another element common to the cases (perhaps less so in regard to Resolution 2334) is that elected members acting as penholders have allotted considerable time for the consideration of draft resolutions by the whole Council. Unlike instances where P3 members are criticized for circulating draft documents only hours before a scheduled vote, penholder coalitions made-up of elected members have tended to allow more time for deliberating draft documents. For instance, the whole Council debated the draft of Resolution 2139 for two weeks before its unanimous adoption and Resolution 2165 was negotiated by all Council members for one week.Footnote 114 As for Resolution 2286 on the protection of health care personnel and facilities, the 15 members debated on it during three rounds of negotiations from April to May 2014, and made amendments to the text during those debates to take into account the views of all members.Footnote 115
Principled decision: Although greater involvement by elected members will not completely prevent political decisions driven by national interest, sometimes these members can mitigate the impact of such decisions or help to shine the spotlight on them. The Syrian humanitarian initiative provides a clear example of how elected members navigated tensions between permanent members to achieve progress on an issue that had reached a standstill in the Council due to political positioning and self-interest. Indeed, disagreement between the United States and Russia on how to best address the conflict in Syria has fuelled the most significant frictions between those two powers since the Cold War. As two permanent members wielding veto power, their differences make any action by the Council extremely arduous, as shown by the number of vetos exercised by Russia, and often China, on draft resolutions regarding Syria since 2012.Footnote 116 Elected members were, nevertheless, able to devise creative solutions that met the positions of both sides halfway. The proposition by the penholders to establish a notification mechanism requiring the UN to notify Syria of the content of all humanitarian convoys is one example of a compromise made to secure the vote of Russia. Indeed, Russia originally backed Syria’s request that all aid be redistributed under its authority. The notification mechanism constituted a middle ground between the P3 position and Syria’s that eventually won Russia’s support for the resolution.Footnote 117
The same holds for Resolution 2334 on Israeli settlements in occupied Palestinian territories. This outcome, in the words of the NGO Security Council Report, is a demonstration of ‘how elected members can play an instrumental role in galvanising the Council on even the most contentious issues’.Footnote 118 Indeed, American policy has been to veto resolutions critical of Israel, and in 2011 the United States vetoed a draft resolution on the issue of Israeli settlements.Footnote 119 In this case, a strategic timing of the vote to coincide with the transition period at the White House – the rationale was that the United States would be less likely to veto the draft resolution – and the power of a coalition with other elected members, which helped to diminish or diffuse pressure by more powerful member states, led to the adoption of the first resolution explicitly addressing the issue since 1980.Footnote 120
In these two cases, elected members acting as penholders were able to mitigate the impact of the use of the veto by Russia, in the case of Syria, and the United States, in the case of Israeli settlements in the occupied Palestinian territories, motivated by what these two states understood to be in their best national interest. The compromises these penholders reached with Russia, in one situation, and the United States, in the other, contributed to more principled decisions, better aligned with the purposes and principles of the United Nations, as specified in the UN Charter.
7. Conclusion
Elected members have always struggled to influence Security Council outcomes. This is not surprising given the legal architecture that structures the body in a manner that favours the permanent members (i.e., the veto power and permanency). The penholdership is generally seen as an additional obstacle to the transparency of Security Council decision-making process and the participation of elected members, because current practice has permanent members overwhelmingly holding the pen. The codification of the penholdership system is somewhat of a double-edged sword for elected members. On the one hand, it reifies a practice that decreases transparency in the Council’s decision-making process and restrains the participation of elected members in it. On the other, with language that invites greater participation of elected members in the drafting and negotiating of Council products, it creates momentum for challenging the quasi-monopoly of the P3 over penholdership, which elected members would be wise to take advantage of.
The examples of the initiative taken by elected members in situations considered in the last section suggests that this is precisely what is happening. In the last few years, elected members have been emboldened to influence the Council’s approach to conflicts by taking the pen. These new dynamics have increased the Security Council’s adherence to key principles of the rule of law. Elected members acting as penholders tend to operate in ways that increase the transparency of the deliberations for other Council members and sometimes even the wider UN membership. They generally favour the participation of all members at an earlier stage of negotiation. Greater influence of elected members in the decision-making of the Council has also contributed to more principled decisions, curtailing the arbitrariness of some of its actions – or inactions – that may otherwise result from the self-interest of its members. In doing so, they have created a roadmap for future elected members who wish to play an active part in the deliberation of the Council while fostering principled decisions that respect rule of law principles.
