26 December 2023

Chapter 5:   CONDUCT OF MEEINGS AND PARTICIPATION

Section 6:   Motions, proposals, and suggestions

With Albania as Chair, Informal Working Group on documentation and procedure agrees a presidential note expanding codification of “Penholding”

After lengthy negotiations, on 1 December 2023, the Security Council adopted presidential note S/2023/945 which significantly expands codification of the “informal arrangement” of penholding.[1] The note describes penholding as the practice “whereby one or more Council members . . . initiate and facilitate the informal drafting process, as well as timely initiatives, of the Council, among other and related tasks”. These other initiatives and tasks, although not detailed in the new note, may include proposing, organizing and leading Council missions to the field, as well as initiating Council deliberations in the event of new developments concerning the file in question. The drafting processes relate primarily to resolutions, presidential statements and press statements, as mentioned in paragraph (c)(vii) of the Note.

The present distribution of penholding responsibilities among Council members has been in effect for about twenty years. It began with self-designation by individual Council members – predominantly the “P3” (France, the United Kingdom and the United States) – who took the lead on the majority of files. Over time, however, elected members have expanded their penholding role. Today, E10 “hold the pen” consistently on files which include Afghanistan, children and armed conflict, piracy off the coast of Guinea, small arms, humanitarian aspects of the situation in Syria, and West Africa including the Sahel. Elected members have also now established themselves as co-penholders not only with each other, but also with some P3 on files such as Central Africa, Haiti, vessel inspections related to Libya sanctions, and Ukraine.

S/2023/945 is the latest in a series of presidential notes which represent efforts by Security Council members to bring more transparency, opportunity, fairness, effectiveness, and accountability to the penholding process. In the years after the present penholding process began, disagreement began to emerge concerning several issues. Some of these were initially addressed in two earlier presidential notes – S/2014/268 and S/2017/507 – and are now taken further by presidential note S/2023/945, as follows:

1)  Fixed penholding

As the present penholding practice became entrenched, some Council members questioned whether responsibility for most files should remain consistently in the hands of a particular penholder. After lengthy deliberation, the Security Council decided in its 2014 presidential note to express support for fixed penholding “where appropriate”.[2] That note provided – in language nearly identical to that restated in the new 2023 note – that Council members “support, where appropriate, the informal arrangement whereby one or more Council members (as ‘penholder(s)’) initiate and chair the informal drafting process”.[3] The purpose of fixed penholding, as explained in the 2014 note (and carried forward in note S/2017/507 but not in S/2023/945), was that it “aims to facilitate timely initiatives to ensure Council action while preserving an element of continuity, with a view to enhancing the efficiency of the Council’s work.”

2)  Penholding opportunities for Council members other than the P3

Although the concept of fixed penholding was thus legitimated as at 2014, the question as to which members should actually “hold pens” remained controversial. There was a strong feeling among many Council members that the P3 should not be able to monopolize the drafting of the majority of the Council’s outcome documents. Accordingly, the 2014 note also established that “Any member of the Security Council may be a penholder.” This position has been taken a degree farther by the 2023 note, which says more actively that “Any member of the Security Council should have the opportunity to be a penholder or co-penholder” (our emphasis). This moves the concept from being a merely abstract statement of principle to the practical matter of identifying such opportunities.[4] S/2023/945 further makes explicit that such penholding opportunities should be with respect to both country-specific and thematic files. This is an important point, as the elected members’ earlier opportunities to penhold had largely been on thematic matters.

The 2023 note elaborates on the question of “opportunity” by describing some attributes of Council members which position them to “add value as a penholder or co-penholder”. These include:

• having expertise in and contributions to the subjects;

• having regional perspectives on the subjects;

• chairing relevant subsidiary bodies; and

• having “specific interests”.

That subsidiary body chairs should have opportunities to penhold is a point which successive elected members had raised for a number of years. In 2018, the then ten elected members, together with the incoming five, jointly wrote a letter to the Security Council President (S/2018/1024). One of the issues raised in the letter was that the Council “should make better use of the expertise that the Chairs of sanctions committees develop on the situations discussed in their respective committees”. The signatories went so far as to say that the Council should consider “the automaticity” of chairs serving as penholders on the related dossiers should they so choose. While S/2023/945 gives due regard to the expertise of subsidiary body chairs, it stops short of adopting a rule of “automaticity” for their assuming the role of penholders on relevant files. At least in part this reflects statements by some elected members chairing subsidiary bodies that they do not seek to be penholders on those files.

3)  Contents of outcomes

It has been frequently raised that Council members should be more exacting as to the contents of draft decisions. Accordingly, S/2023/945 carries forward from S/2017/507 the recommendation that penholders should strive to make Council outcomes “focused, succinct and action-oriented”. To enhance content, the 2023 note also encourages penholders to informally consult “the Chairs of the subsidiary bodies concerned before circulating an early draft of a document involving the same country or region, in particular in the case of renewal of sanctions measures or bodies”. Moreover, S/2023/945 strengthens the language relative to consulting with the wider UN membership, as is discussed later in this article.

4)  Full participation by all Council members in the negotiation of texts

An early criticism of the present penholding system was that those holding the pen were sometimes resistant to inputs from other Council members. This could take the form of refusing to incorporate proposed additions or changes into texts. It also could result from giving scant time to other members to comment on a text before it was moved for adoption. This issue has been addressed in increasing detail from the 2014 presidential note onwards. One interesting shift is that whereas the earlier notes framed the issue in terms of “inclusivity”, the 2023 note makes the broader statement that the Council’s work “is a collective endeavour and responsibility”. In other words, it is not enough for penholders merely to include other members in the drafting exercise. Rather, it is desirable that whenever possible, the text should be more representative of the viewpoints of the Council as a whole.

To this end, S/2023/945 sets out a number of recommendations for penholders to:

• Share drafts as early as possible to provide reasonably sufficient time for consideration by all Council members;

• Consult Chairs of the subsidiary bodies concerned before circulating an early draft of a document involving the same country or region;

• Ensure early in the drafting exercise an exchange of information among all Council members;

• Engage in timely consultations with all Council members;

• Show objectivity and impartiality during the drafting and negotiation process;

• Conduct negotiations in a constructive and respectful manner;

• Prioritize forging consensus whenever possible;

• Promote Council unity through sufficient informal consultations or informal informals on drafts;

• Make every effort to address divergences in a flexible and timely manner; and

• Ensure, whenever possible, that the silence procedure for drafts is at least 24 hours to allow sufficient time for Council members to consult their capitals.

As of 2022, the Council’s Informal Working Group on Documentation and Other Procedural Questions (IWG) began a practice of having penholders report orally on how they had carried out their penholding responsibilities. These sessions have become a regular feature of each IWG meeting and serve both as an accountability exercise and also as a way of sharing best practices. And whereas initially they mainly involved P3 penholders, they now include a broader range of Council members, both elected and permanent. It is a positive development that the specificity of the recommendations for penholders set out in S/2023/945 will in future provide a sound basis for penholding reporting in the IWG that is comprehensive, as well as more uniform across all files.

5)  Responsibilities of Council members other than the penholders

While many of the complaints over drafting experiences have related to the conduct of penholders, penholders themselves have sometimes detailed behaviour by other Council members that they feel has impeded optimal results. Two of these are addressed for the first time in writing in S/2023/945. The new note calls on Council members other than the penholder to “strive to provide timely feedback, including written comments, during the negotiation of draft documents”. Further, the note underscores the responsibility of non-penholders to participate in negotiations “in a constructive and respectful manner”.

6)  Consulting with the wider UN membership

S/2023/945 considerably strengthens the language relative to penholders consulting with the wider UN membership. Whereas earlier the Council merely recommended such consulting, the new Note states that penholders, in so consulting, especially with the Member States concerned, should, as appropriate, take “into full consideration their views and concerns”.

What has not been carried forward into the 2023 note is the statement in S/2017/507, paragraph 84 that Council members

“agree to consider making draft resolutions and presidential statements as well as other draft documents available as appropriate to non-members of the Council as soon as such documents are introduced within informal consultations of the whole, or earlier, if so authorized by the authors of the draft document.”

However, since S/2023/945 contains nothing to the contrary, paragraph 84 can be considered as remaining in effect.

7)  Process for putting a resolution “into blue”

For the first time ever, S/2023/945 introduces an element of codification to the longstanding informal practice of “putting a draft resolution into blue”. The new note states that penholders should strive “to ensure, whenever possible, that, after draft resolutions are put in blue, at least 24 hours should be allowed for consideration by Council members before drafts are put to a vote”.

As detailed in the book (pages 269-272), beginning in the 1960s, the Security Council, like the General Assembly and ECOSOC, began circulating advance draft resolutions printed in blue ink. This served to indicate that the penholder(s) had decided a draft was ready to be put to a vote, either because it had garnered sufficient support or because no further progress through negotiations was anticipated. But whereas Assembly Rule 78 requires that a draft resolution be circulated at least the day before the vote is taken, there is no such fixed requirement for the Security Council, as now confirmed in S/2023/945. Rather, the new note merely recommends a period of 24 hours “whenever possible”. And in actual practice, often the “24-hour rule” is interpreted to mean only an overnight wait, such that some draft resolutions which are “put into blue” late in the day are brought to a vote the following morning. It should also be noted that the Council has a longstanding practice of allowing draft resolutions to be submitted and then put to a vote within a relatively short timeframe when a situation appears to demand a more rapid response.

8)  Implementation of Council decisions

In another innovation, S/2023/945 is the first presidential note to set out concrete recommendations for enhancing implementation of Council decisions. It encourages all Council members, in particular penholders, to monitor the implementation of Council decisions by regularly consulting the Secretariat as well as the broader UN membership, in particular the Member States concerned and troop- and police-contributing countries, as appropriate. It also recommends that all Council members propose and organize additional Council activities “in monitoring and promoting implementation, as necessary”.

Concluding thoughts

As the stage is now set for the new presidential note’s implementation, it is well to keep in mind that it was negotiated in the Informal Working Group. It will now be up to Council members at all levels – from the experts initially working on drafts to the highest level of delegation leadership in New York and at ministries – to endeavour in good faith to implement its contents to the extent possible. And it will also be incumbent upon the IWG to evaluate accountability and best practices against the specific recommendations of S/2023/945.

In order to enhance implementation of the new note, it will also be important for the wider UN membership to make the effort to study its provisions so that they can support these improvements in an informed way, even as they may choose to continue to criticize penholding practices when they feel this is merited.

For a number of years, various aspects of Security Council penholding have generated controversy throughout the UN community.[5] As detailed above, the new 2023 presidential note represents a serious attempt by Council members to solidify and build upon best practices, while also breaking new ground in both the breadth of the note’s coverage and its specificity.

In particular, the note’s forward steps toward wider elected-member participation in penholding responds to what the E10 have referred to as “widespread recognition of the need to encourage more meaningful and effective participation of elected members in the drafting of the Council’s outcome documents”. And as the E10 also have said, this stands to benefit not only themselves, but the Council as a whole: “The legitimacy and effectiveness of the Council has much to gain from a more inclusive and transparent penholdership practice.”[6]

See also these related articles on this website:

"A historical overview of the 'penholder' practice for drafting Council outcome documents"

"Backgrounder on the 'penholder' practice for drafting outcome documents (with Table)"

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(This update supplements pages 269-272 and 286-287 of the book.)

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[1] In much of this article, where the term “penholding” is used, it refers equally to “co-penholding”.

[2] S/2014/268. This provision was later incorporated in presidential note S/2017/507 as paragraph 78.

[3] S/2023/945 says “initiate and facilitate the informal drafting process.”

[4] The need to ensure equal opportunities for all interested Council members to act as penholders had been mentioned, inter alia, in the joint statement by the E10 in the September 2023 open debate on working methods (see S/PV.9410).

[5] See, for example, Albania’s national summary of the 2023 Security Council open debate on working methods (S/2023/921).

[6] See S/PV.9410.