Chapter 7:   DECISIONS AND DOCUMENTS

Section 5:   Decisions to recommend appointments of Secretaries-General

 

ACT proposes a more transparent, inclusive process for appointing the Secretary-General

 

On 1 June 2015, the representative of Switzerland, in his capacity as Coordinator of the 27-member Accountability, Coherence and Transparency Group (ACT), transmitted to the Presidents of the Security Council and General Assembly the Group’s proposals for the process of appointing the next UN Secretary-General (S/2015/400).  The ACT paper states that the provisions of Article 97 of the UN Charter whereby candidatures for the post of Secretary-General “are first discussed within the Security Council and then recommended to the General Assembly should remain unchanged”.  However, ACT recommends that the Presidents of the Assembly and the Council should launch the nomination process by sending a joint letter, inviting UN Member States to present nominations by a fixed deadline, such as the end of 2015.  ACT further proposes that at the conclusion of the nomination process, the Assembly and Council should jointly issue a list of the candidates, with curricula vitae attached, as well as an outline of “the ensuing steps and indicative timelines”.  The ACT paper states that the selection process “should be finalized as early as possible, preferably three months prior to the assumption of office by the incoming Secretary-General”.  Since the term of the next Secretary-General will begin on 1 January 2017, the completion deadline proposed by ACT is thus 1 October 2016.

 

The ACT Group further calls for “the full implementation of relevant resolutions”, including General Assembly resolution 11(I) of 24 January 1946.  That resolution provides, inter alia, that it would be “desirable for the Security Council to proffer one candidate only”.  This contrasts with the call on 7 February 2015 by The Elders that the General Assembly “insist that the Security Council recommend more than one candidate for appointment as the Secretary-General” (see the other article in this website section).   At a panel discussion on the “Process of selection and appointment of the next Secretary-General” convened by ACT on 30 June 2015 (see first link below), the representative of the United Kingdom stated that he did not agree with proposals to have the Council recommend more than one candidate to the Assembly, and other of the permanent members are considered also to hold the same opinion.

 

Assembly resolution 11 (I) also provides that “The first Secretary-General shall be appointed for five years, the appointment being open at the end of that period for a further five-year term.”  Thereafter, it has been the Security Council which has recommended a five-year term of office for each subsequent Secretary-General, with only some slight technical adjustments.  At the 30 June ACT meeting, the representative of Estonia, who co-chairs with Costa Rica ACT’s sub-group on appointing the Secretary-General, stated that at this point, ACT had not taken a position on the length of the term of office.  However, he echoed the position set out in the ACT paper that the Group “sees merit in discussing the term of office of the Secretary-General.”  The Elders have recommended that the Secretary-General “be appointed for a single, non-renewable term of seven years, in order to strengthen his or her independence and avoid the perception that he or she is guided by electoral concerns.”  At the 30 June programme, one of The Elders, Mary Robinson, noted that limiting the Secretary-General to a single term need not depend on a decision by either the Assembly or the Council.  Rather, she encouraged individual candidates to announce in advance that they would serve only one term, thereby creating momentum for all candidates to do so.

 

The ACT paper recommends the formal presentation of candidates, as well as open hearings which would allow the wider UN membership to engage with nominees.  Endorsing more transparency within the Security Council, ACT also encourages the Council to give public briefings regarding developments during the Council’s nomination process.

 

As to the attributes of the next Secretary-General, the ACT paper states that the joint letter by the Assembly and Council Presidents to the UN membership “should strongly encourage Member States to nominate qualified female candidates”.  The ACT paper also affirms that “Due regard should be given to equal and fair geographical distribution, through rotation, and to gender balance, through giving preference to equally qualified female candidates.”  To date, compared to several dozen male candidates, only three female candidates have been formally voted on for the post of Secretary-General:  V. L. Pandit (India) in 1953; Gro Harlem Brundtland (Norway) in 1991; and Vaira Viķe-Freiberga (Latvia) in 2006. 

 

The issue of geographical rotation is a sensitive one.  As pointed out in the book (page 414), in 2005, the year before the end of Kofi Annan’s second term, “some States felt it was time for the next Secretary-General to be from Eastern Europe – the one region yet to be represented in the office”.  However, according to United States Ambassador John Bolton, “a political deal” had been reached in 2001 “between the African and Asian groups for Asia to support Annan for a second term (Africa’s third consecutive term), in exchange for Africa’s committing to vote for an Asian in 2006”.  Therefore, it is the view of the Eastern European Group that, having waited the additional ten years from 2006 to 2016, it is now clearly time for the next Secretary-General to be from Eastern Europe.  However, The Elders, the civil society organization “1 for 7 Billion”, and UN diplomats such as the representative of the United Kingdom have stated that the selection of the next Secretary-General should not be limited by the geographical rotation concept (see first link below). 

 

Such a position has met with a strong response from members of the Eastern European Group, and others.  At the 30 June ACT meeting, the representative of Hungary, through a question, brought out the point that some Member States which now propose that the selection process not be limited by geographical rotation adhered closely to the rotation concept in the selection of previous Secretaries-General.  In addition, at a programme held at the International Peace Institute (IPI) on 24 April 2015, the representative of Croatia said in connection with the regional rotation of the Secretary-General:

 

“We can debate how [UN regional groups] are composed, but the whole UN system is based on

regional rotation.  The Security Council is composed based on regional groups and rotating members,

and chairmanship of the main committees is based entirely on regional groups.  So regional groups

are not just an auxiliary measure in the system.  They are the heart of the system.”

 

Similarly, a former representative of India cautioned against understating the role played by regional groups at the UN.  “In a system which is based on a very thin veil of consensus and broad acceptability, there have to be some rules which govern geographic rotation.”  He added that the regional group system at the UN “is far more important than it appears from the outside” (see second link below).

 

A further reform proposed at both the ACT and IPI meetings was an end to the alleged promises by some candidates to accord high-level posts in the UN system to the nationals of key Council members in return for their support.  Mary Robinson spoke reprovingly of this “unseemly practice”.  

 

The question arose at the 30 June ACT meeting as to how reforms to the selection process could be institutionalized.  As noted in the book, Article 10 of the UN Charter provides that the General Assembly may discuss and make recommendations “relating to the powers and functions of any organs provided for in the present Charter”. Thus, although the Assembly is not prohibited from adopting resolutions with respect to the Council’s procedures and working methods,

 

“under the Charter these would have the status of recommendations.  Language contained in the

2012 ‘Small Five’ draft resolution on Council working methods [A/66/L.42/Rev.2] reflected that reality. 

Instead of ‘deciding’ that certain working methods should be adopted by the Council, the draft ‘invites

the Security Council to consider the measures contained in the annex to the present resolution’.”

(page 677)

 

Therefore, should the General Assembly eventually adopt resolutions relating to the appointment process of the Secretary-General, these will not be binding upon the Council.  Rather, pursuant to Article 30 of the UN Charter, the Council in this, as in other matters, remains master of its own procedure. Therefore, for the Council to act upon recommendations by the General Assembly, or others, relating to the appointment of the Secretary-General, three possibilities exist:

 

1.  Voluntary agreement by the Council to implement any of the various proposals almost undoubtedly will require the consensus of all Council members.  This would be the case, for example, in connection with the writing of an initial joint letter by the Council and Assembly Presidents, since in such a case, the Council President would be representing the Council “in its capacity as an organ of the United Nations” pursuant to Rule 19 of the Council’s Provisional Rules of Procedure.  In addition, given that it has been the Council’s consistent practice over the last two decades to promulgate changes to its working methods in the form of a Note by the President, that would be the likely format for any decisions by the Council to apply new working methods to its internal recommendation process for the Secretary-General.  And as explained on page 429 of the book, Notes by the President require consensus.

 

2.  If there is not consensus among all Council members to change the Council’s customary practices for making its recommendation for the Secretary-General’s appointment, one or more Council members could formally propose certain changes.  Then if objection were raised, the Council would proceed to a vote.  It should be noted that such a vote would have to be held at a formal Council meeting, whether public or private, in order for the result of the vote to be binding upon the Council. 

 

In the case of such a vote, the question might arise as to which aspects of the Council’s recommendation to the Assembly for the appointment of the Secretary-General are procedural, and which are substantive.  This is an important question, given that on procedural matters, under Article 27(3) of the Charter, a minimum of nine affirmative votes is required and the veto does not apply.  This question would be of greatest interest with respect to the two most important proposed reforms:  a) the recommendation by the Council to the Assembly of more than one candidate, and b) changing from a five-year, renewable term of office to a seven-year, non-renewable term.  

 

As will be seen in resolution 1987 (2011), attached below, the Council’s standard resolution for the appointment of the Secretary-General contains a recommendation both as to the name of the nominee and as to the length of the term of office.  It is well-established in the Council’s past practice that draft resolutions by which the Council recommends a candidate to the Assembly are considered to be substantive.  This can be seen in the number of draft resolutions of this type which were not adopted after receiving negative votes from permanent members in 1950, 1953, 1971, 1976, 1981 and 1996 (see pages 302, 309 and 312 of the book).  Thus, if a draft resolution for an actual recommendation included the names of more than one nominee or recommended a seven-year term of office, it is clear that these changes to the process could be blocked by a permanent member, simply by vetoing the resolution as a whole.  In such case, a determination as to whether any of the draft resolution’s provisions were procedural or substantive would become moot.

 

It is possible, however, that beforehand a Council member could submit a draft resolution which sets out new practice for the nomination process, including that the Council should recommend more than one candidate or recommend a revised term of office.  In this event, the Council would need to determine whether the draft resolution was procedural or substantive, so as to know whether it could be blocked by a veto.  Recalling that the actual recommendation of plural nominees or a revised term of office can be vetoed, it could be argued by extension that the number of candidates to be nominated and the term of office are both matters of substance, even if included in a draft resolution which primarily addresses procedure.  In any event, even if a draft resolution setting out new practice for the nomination process is determined to be procedural, and therefore is adopted despite negative votes by permanent members, this would not prevent one or more permanent members from blocking the adoption of a nomination resolution incorporating the new elements.  That is, a permanent member could prevent the actual implementation of the new measures simply by consistently vetoing any draft resolution which proposed the name of more than one candidate or recommended a term length of other than five years.

 

If a draft resolution on the appointment process did not include the number of candidates or the term length to be recommended to the Assembly, but instead was restricted to modalities for transparency and efficiency, it is more likely that such a resolution would be deemed to be procedural.

 

A related article on this website addresses one aspect of a possible vote on the appointment processs by the Council in a formal meeting:  the so-called “double veto”.

 

3.  Certain measures could be put into practice at the initiative of one or more Council members without the agreement of all Council members.  For example, in order to introduce greater transparency into the selection process, the representative of the United Kingdom has already announced that he intends to host an open “Arria-formula” meeting to which the “leading candidates” will be invited (see first link below).  As noted elsewhere on this website (see third link below), “Arria-formula” meetings do not constitute an activity of the Council.  They are convened at the initiative of one or more Council members and can be held without the agreement of other Council members, although each member of the Council is free to choose not to attend.  In addition, as noted above, some measures, such as limiting the term of office of the Secretary-General to a single term, could be initiated voluntarily by the candidates themselves.

 

How the Security Council and the General Assembly will proceed in addressing these various proposals, and in what timeframe, remains to be seen.  The representative of the United Kingdom has stated that “it is the Council that must take the lead” in creating a more transparent, structured and inclusive selection process, “as it is the Council that has been mandated in the Charter of the United Nations to make the recommendation to the General Assembly” (S/PV.7479).  But whereas the British representative has called for an “indicative” application deadline of December 2015, and for the Council to agree upon its recommendation by June 2016, the Russian Federation has questioned the merits of taking up the matter earlier than in the past.  A Russian representative recently stated that “we do not clearly understand the link between [the appointment process] and the June and July agendas of the Council, as it would seem that the election of the new Secretary-General is set for next year.”  In this connection, he recalled that in 2006, Ban Ki-moon was appointed as Secretary-General three months before he was to take office (ibid.).  (This update supplements pages 404-415 of the book.)

 

For an unofficial list of declared and undeclared candidates, see the fourth link below.

 

1)  http://webtv.un.org/meetings-events/watch/panel-discussion-on-“process-of-selection-and-appointment-of-the-next-secretary-general-a-call-for-action”/4330810685001

 

2)  http://www.ipinst.org/2015/04/un-reform-selecting-the-next-secretary-general#12

 

3)  http://www.scprocedure.org/#!chapter-2-section-11/ct1m

 

4)  http://www.1for7billion.org/candidates/