Chapter 7:   DECISIONS AND DOCUMENTS

Section 8:   Notes by the President

 

Understanding Notes by the President as “decisions” of the Security Council

 

It is sometimes believed that resolutions are the only “real” decisions of the Security Council.  But in fact, the word “resolution” does not appear anywhere in the UN Charter.  Rather, in Articles 25 and 27, the Charter speaks only of “decisions” by the Council. 

 

In actuality, the Security Council can – and does – adopt decisions in any format it deems appropriate.  These include resolutions, presidential statements (PRSTs), letters by the president, and notes by the president.  

 

The process of adopting a Security Council decision may be seen as comprising two parts:  the first part is achieved when the Council members reach agreement on the contents of the decision; the second part is “publishing” the decision in a particular format.  The first edition of Simma’s The Charter of the United Nations: A Commentary affirmed that the distinction between the formats in which Security Council decisions are published is “purely formal” and “does not entail any normative difference”.[1]  

 

This lack of “normative difference” between formats applies to all decisions of the Council, whether they are procedural or non-procedural.  These two categories of Council decisions are set out in Article 27 of the Charter, which provides both for decisions taken “on procedural matters” (para. 2) and for those taken on “all other matters” (para. 3).  (These latter decisions have come to be called “substantive”, although that word is not used by the Charter.)  It is because the Charter speaks in terms of “decisions” with respect to both categories that there is no authority for considering that formats other than resolutions cannot be “decisions” unless their contents are “substantive”.

 

In the Council’s early years, almost all its decisions were in the format of resolutions, including those relating to procedure.[2]  From the mid-1960s onward, however, statements by the president of the Council on behalf of all its members additionally came to be deemed “decisions”.  And eventually, certain letters sent by the president on behalf of the Council, as well as some notes by the president, came also to be considered formats through which decisions were “published”.[3]

 

This broadening of decision formats is reflected in the annual volume of Resolutions and Decisions of the Security Council, published by the UN Secretariat on behalf of the Council.  This publication includes not only resolutions, but also any statements, letters and notes by the president which are deemed to contain “decisions”, whether substantive or procedural, or a combination of the two.  

 

Of course, not all notes by the president publish decisions.  Rather, other notes transmit information to the Security Council when protocol or political considerations suggest that the sender not communicate directly with the Council.  These include reports by the International Atomic Energy Agency,[4] communications from the Holy See, and reports submitted to the Council by the Panel of Experts on nuclear non-proliferation as relates to the Democratic People’s Republic of Korea.[5] 

 

However, since 1993, many notes by the president have published decisions relating to Security Council working methods.  As mentioned above, this type of procedural decision was originally published in the format of resolutions.  But after 1993, only occasionally has the Council adopted resolutions or PRSTs which contain working methods decisions.  And most of these have related to one-time situations, rather than setting out general guidelines for procedure.

 

For example, the Council has continued to adopt resolutions when setting the dates of elections to fill vacancies on the International Court of Justice.  Another instance was resolution 1569 (2004), by which the Council set out its decision to hold formal meetings in Nairobi in 2004, as well as to “waive the requirement laid down in Rule 49” that the verbatim record be made available on the first working day following each of those meetings. 

 

Among presidential statements setting out decisions relating to procedure, two were adopted in 1994, the year of the Rwandan genocide, when that country was also seated on the Council.  In light of the uncertain status of Rwandan representatives in New York, the Council adopted two successive  PRSTs temporarily suspending Rule 18, which governs the monthly rotation of the Council presidency, so as to allow Rwanda to serve its presidency later in the year.[6]  In 2015, a more general presidential statement on working methods was adopted which expresses the Council’s “intent to continue to hold an annual open debate on its working methods and affirms its commitment to continue to keep its working methods under consideration in its regular work, with a view to ensuring their effective and consistent implementation.”[7]

 

These resolutions and PRSTs notwithstanding, today’s norm is for the Council to adopt notes by the president when it wishes to publish decisions relating to the management of its work.  In this connection, three categories of decisions published as presidential notes are the best known:

 

1)  Adoption of the Council’s Annual Report to the General Assembly.  This occurred most recently at a formal meeting held on 20 August 2019.  After ascertaining that there were no objections among Council members to adopting the 2018 Annual Report, the Council President stated, “This decision will be reflected in a note by the President of the Security Council, to be issued as document S/2019/666.”[8]

 

2)  Election of chairs and vice-chairs of the Council’s subsidiary bodies.  This presidential note, published each year in January and amended thereafter as necessary, states that “after consultations among the members of the Council, it was agreed to elect the Chairs and Vice-Chairs of subsidiary bodies for the period ending 31 December [year] as follows”, and then lists all such appointees.

 

3)  Setting out guidelines for working methods, either comprehensively or for particular area(s) of practice.  The “507” documents adopted in 2006, 2010 and 2017 comprise the comprehensive notes by the president on working methods to date.  Of the presidential notes which set out guidelines for a particular area of practice, the most recent was S/2016/619, which published Council decisions on “measures . . . concerning newly elected members”, such as extending to three months the period during which they can observe all Council and subsidiary body meetings and informal consultations prior to the start of their terms.[9] 

 

Moreover, presidential notes have become the format for the Council to publish decisions to amend agenda items as, for example, in the cases of the International Residual Mechanism for Criminal Tribunals,[10] peacebuilding[11] or South Sudan.[12]  The Council also uses presidential notes to publish decisions which definitively alter reporting cycles for reports by the Secretary-General which were originally established by resolutions or PRSTs.[13]  And in the case of Kosovo, a presidential note was used to publish the Council’s decision to set a new frequency for meetings on this agenda item, as well as for related reports by the Secretary-General.

 

A politically important note by the president was S/2016/44, issued in 2016.  That note contained the Council’s decisions as to how it would carry out “tasks related to the implementation of resolution 2231 (2015)” on the Joint Comprehensive Plan of Action with respect to Iran’s nuclear programme.

 

Three further considerations suggest themselves with regard to decisions set out as presidential notes:

 

• First, in virtually all Security Council decision formats, not all provisions constitute “decisions” per se.  Rather, resolutions, PRSTs and relevant presidential letters and notes frequently also include descriptive, preambular-type language.  Therefore, a determination as to whether or not a presidential note publishes a “decision” should not be made on the basis of whether or not all of its contents are “decisional”, any more than such a determination would be made with respect to resolutions or presidential statements. 

 

• Second, as with all other formats of Security Council decisions, a note by the president does not need to contain mandatory provisions in order to be considered a “decision”.  It is clear, for example, that a resolution adopted pursuant to Chapter VI of the Charter which contains only recommendations to the parties is nonetheless a decision – a decision, in that case, to make those recommendations. 

 

Presidential notes on working methods usually contain both provisions expressing commitments and those in the nature of recommendations or “encouragements”.  The latest comprehensive note on working methods, S/2017/507, demonstrates this.  Its paragraph 91 (g) states categorically that “The President of the Security Council will report to the Council on consultations with troop- and police-contributing countries with a summary of the meetings.”  Likewise, paragraph 141 states that “newly elected members will not be invited to the meetings of the Council or the informal consultations of the whole related to the selection and appointment of the Secretary-General.”

 

An example of provisions more on the order of recommendations is paragraph 111, which states, “The members of the Security Council should make every effort to agree provisionally on the appointment of the Chairs of the subsidiary bodies for the following year no later than 1 October.”

 

• Third, it should be considered to whom each decision contained in a presidential note is addressed.  The majority are aimed primarily at the Council itself as, for example, when a note amends an agenda item or appoints bureaux of its subsidiary bodies.  However, others are directed, in whole or in part, to the Secretariat.  These include, for example, decisions to alter the reporting cycle for reports by the Secretary-General, or such provisions as paragraph 69, which states, “The members of the Security Council request the Secretariat to update the Council towards the end of each month on the progress in the preparation of the reports of the Secretary-General to be issued the following month...”   

 

Relatively few presidential notes, partially or in their entirety, contain firm provisions applicable to non-Council Member States.  One, though, is paragraph 34, which states, “When non-members of the Security Council are invited to speak at its meetings, they will be seated at the Council table on alternate sides of the President, the first speaker being seated on the President’s right.”  More commonly, provisions in presidential notes addressed to non-Council Member States are on the order of recommendations, as in paragraph 22, which “encourages, as a general rule, all participants, both members and non-members of the Council, in Council meetings to deliver their statements in five minutes or less.”

 

As has been described above, the Security Council continues to publish decisions on its procedures variously using resolutions, notes by the president, and an occasional PRST, with the Council usually deciding between these formats according to the nature of the decision.  The fact that there continues to be some flexibility in this respect indicates that such decisions do not gain or lose validity depending on the format in which they appear.

 

Overall, the fact that presidential notes on working methods constitute “decisions” helps understand why sometimes the Council members are unable to reach consensus on such documents, not only because of the issues at stake, but also because of the weight given to such notes in light of their being considered “decisions”.

 

(This update supplements pages 373-380, 397-398, and 429-430 of the book.)

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[1] Bruno Simma (ed.), The Charter of the United Nations: A Commentary, 1st ed., Oxford, Oxford University Press, 1995, p. 464.

[2] See, for example, resolutions 6 and 14, both adopted in 1946, and resolutions 26, 33 and 37, all adopted in 1947.

[3] In this connection, it is important to note that although the Charter sets out requirements for adopting decisions at formal meetings, nowhere does the Charter state that a formal meeting is required for the adoption of a Council decision.  Thus, the standing of a decision “published” in the format of a letter or note is not undercut by the fact that it was not adopted at a Council meeting. 

[4] See, for example. S/2019/738.

[5] See, for example, S/2019/691.

[6] S/PRST/1994/48 and 55.

[7] S/PRST/2015/19.

[8] S/PV.8597.  All italics in this article are our emphasis.

[9] The year after its adoption, this note was incorporated into S/2017/507.

[10] S/2018/90.

[11] S/2016/560.

[12] S/2013/657.

[13] See, for example, S/2013/657 and S/2014/613 relating to South Sudan.  In contrast, a one-time alteration of a reporting cycle is, by practice, agreed through an exchange of letters between the Secretary-General and the Council President.