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THE WORKING METHODS OF THE UNITED NATIONS SECURITY COUNCIL: MAINTAINING THE IMPLEMENTATION OF CHANGE

  • Joanna Harrington (a1)
Abstract

The United Nations Security Council is often described as an opaque body, closed in both membership and approach, and unaccountable for its conduct. For many years, this view has motivated calls for reform to the Council's working methods. This article aims to shine light on the Council's approach to process matters, recognizing the Council's preference for making change through developments in practice. The article reviews the efforts undertaken by the ‘Small Five’ group of States from 2005 to 2012, followed by the efforts since 2013 of the Accountability, Coherence and Transparency Group, while also acknowledging the contributions made by Japan. With some proposals having received some degree of Council support, the sustained implementation of change is identified as the key priority. The article argues for the contextual application of the key concepts of transparency, engagement and accountability, as well as prevention, to provide a principled basis for both the maintenance and development of working methods reform.

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1 Wood, MC, ‘Security Council Working Methods and Procedure: Recent Developments’ (1996) 45 ICLQ 150–61. See also Winkelmann, I, ‘Bringing the Security Council into a New Era: Recent Developments in the Discussion on the Reform of the Security Council’ (1997) 1 MaxPlanckYrbkUNL 35, esp 51–8, and Hulton, SC, ‘Council Working Methods and Procedure’ in Malone, D (ed), The UN Security Council: From the Cold War to the 21st Century (Lynne Rienner 2004) 237 . For the leading work, see Sievers, L and Daws, S, The Procedure of the U.N. Security Council (4th edn, Oxford University Press 2014). See also the ‘Repertoire of the Practice of the Security Council’ at  <http://www.un.org/en/sc/repertoire/>.

2 GA Res 60/1, adopted 16 September 2005, UN Doc A/RES/60/1 (24 October 2005) reprinted in UN GAOR, 60th Sess, Supp No 49, vol I at 3, UN Doc A/60/49 (2006).

3 The Security Council: Working Methods Handbook (United Nations 2012) 4.

5 Provisional Rules of Procedure of the Security Council, UN Doc S/96/Rev.7 (1983).

6 Others have written about Security Council reform using interviews with diplomats. See, for example, Swart, L and Perry, E (eds), Governing and Managing Change at the United Nations: Reform of the Security Council from 1945 to September 2013 (Center for UN Reform Education 2013). A number of participants have themselves made useful contributions to the literature, which are referenced in this work.

7 The Mission of Switzerland to the United Nations in New York, for example, maintains a documentary collection on working methods reform on its website at <https://www.eda.admin.ch/missions/mission-new-york/en/home/working-methods-of-the-security-council.html>.

8 While only one new member was admitted from 1950 to 1954, 16 new members were admitted in 1955, plus another seven from 1956 to 1959, then 17 more in 1960, followed by 12 more from 1961 to 1963. See United Nations, ‘Member States of the United Nations’ (undated) at <http://www.un.org/en/members/>.

9 Question of equitable representation on the Security Council and the Economic and Social Council, GA Res 1991 A (XVIII), adopted 17 December 1963, reprinted in UN GAOR, 18th Sess, Supp No 15 at 21, UN Doc A/5515 (1964) preamb para 1.

10 ibid, preamb para 2.

11 The resolution was adopted by a vote of 97 in favour (including the Republic of China), 11 against (including France and the Soviet Union) and 4 abstentions (including the United Kingdom and the United States): UN Doc A/PV.1285 at 15 (17 December 1963).

12 26 June 1945, 1 UNTS XVI, in force 24 October 1945 (UN Charter).

13 Amendments to arts 23, 27 and 61 of the Charter of the United Nations, adopted by the General Assembly of the United Nations in resolutions 1991 A and B (XVIII) of 17 December 1963: Protocol of Entry into Force, 557 UNTS 143, with ratifications by the Soviet Union on 10 February 1965, the United Kingdom on 4 June 1965, France on 24 August 1965, and lastly, the United States on 31 August 1965.

14 GA Res 1991 A (XVIII) (n 9) para 3.

15 Question of equitable representation on and increase in the membership of the Security Council, GA Res 47/62, adopted 11 December 1992, reprinted in UN GAOR, 47th Sess, Supp No 49, vol I at 25, UN Doc A/47/49 (1993). This matter had been introduced in 1979, and then included annually as a provisional Assembly agenda item, but it was not considered ripe for action until 1992: Kourula, E and Kanninen, T, ‘Reforming the Security Council: The International Negotiation Process Within the Context of Calls to Amend the UN Charter to the New Realities of the Post-Cold War Era’ (1995) 8(2) LJIL 337, 338.

16 Question of equitable representation on and increase in the membership of the Security Council, GA Res 48/26, adopted 3 December 1993, reprinted in UN GAOR, 48th Sess, Supp No 49, vol I at 29, UN Doc A/48/49 (1994). See further Kourula and Kanninen (n 15) 339–40.

17 The African Group's position can be found formalized in a draft General Assembly resolution introduced in 2005: UN Doc A/59/L.67 (18 July 2005). To date, African States continue to support what is known as the ‘Ezulwini Consensus’, a common African position on UN reform that was adopted by the African Union's Executive Council at its Seventh Extraordinary Session held in Addis Ababa, Ethiopia, 7–8 March 2005, AU Doc Ext/EX.CL/2 (VII), and then endorsed at the Fifth Ordinary Session of the African Union's Assembly held in Sirte, Libya, 4–5 July 2005, AU Doc Assembly/AU/Decl. 2 (V) and Assembly/AU/Resolution 1(V). Support for the Ezulwini Consensus was confirmed recently by the African Union's designated coordinating body, the ‘Committee of the Ten’, at a summit meeting held in Livingstone, Zambia in May 2015.

18 The group's name is derived from the numbering of a draft resolution presented in 2007: UN Doc A/61/L.69/Rev.1 (14 September 2007).

19 These countries, led most vocally by Italy and Pakistan, formed a group known as the Coffee Club, which was later renamed Uniting for Consensus (UfC).

20 Semi-permanent membership has a historical precedent, with the addition of three semi-permanent seats having accompanied Germany's joining the League of Nations as a permanent Council member in 1926. See further D Carlton, ‘The League Council Crisis of 1926’ (1968) 11(2) The Historical Journal 354.

21 United Nations, ‘Countries Elected Members of the Security Council’ (undated) at <http://www.un.org/en/sc/members/elected.asp>.

22 See, for example, the draft resolution brought forward as UN Doc A/59/L.68 (21 July 2005) at para 7(a).

23 Russia continues to maintain this position: UN Doc S/PV.7052 at 14 (29 October 2013); UN Doc S/PV.7539 at 19 (20 October 2015).

24 Kourula and Kanninen (n 15) 341. See also Report of the Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council and Other Matters related to the Security Council, UN Doc A/50/47 (13 December 1996).

25 United Nations Millennium Declaration, GA Res 55/2, adopted 8 September 2000, reprinted in UN GAOR, 55th Sess, Supp No 49, vol I, 4, UN Doc A/55/49 (2001) para 30.

26 2005 World Summit Outcome (n 2) para 153.

27 ibid, para 154.

28 UN Doc A/59/L.67 (18 July 2005) (unnumbered).

29 UN Doc A/59/L.64 (6 July 2005) para 8.

30 UN Doc A/61/L.69/Rev.1 (14 September 2007) (unnumbered).

31 UN Doc A/59/L.68 (21 July 2005) paras 7–9. See also ‘“Uniting for Consensus” Group of States Introduces Text on Security Council Reform to General Assembly’, UN Press Release GA/10371 (26 July 2005).

32 Question of equitable representation on and increase in the membership of the Security Council and related matters, GA Decision 61/561, adopted 17 September 2007, reprinted in UN GAOR, 61st Sess, Supp No 49, vol III at 137, UN Doc A/61/49 (2007).

33 Question of equitable representation on and increase in the membership of the Security Council and related matters, GA Decision 62/557, adopted 15 September 2008, reprinted in UN GAOR, 62nd Sess, Supp No 49, vol III at 106, UN Doc A/62/49 (2008).

34 A point made recently by Liechtenstein at an IGN meeting held on 22 February 2016.

35 Open letter from the S-5 to all UN Missions, dated 3 November 2005, available from the Swiss Mission's website collection (n 7).

36 Open letter from the S-5 sent to all UN Missions, dated 20 March 2006, available from the Swiss Mission's website collection (n 7).

37 A position emphasized, for example, in a statement made by India during the annual open debate on working methods held in 2014: UN Doc S/PV/7285 (Resumption 1) at 29 (23 October 2014).

38 UN Doc A/60/L.49 (17 March 2006).

39 ibid, annex.

40 ibid, annex, paras 13 and 14.

41 In its report, ‘A More Secure World: Our Shared Responsibility’, the High-level Panel on Threats, Challenges and Change had called upon ‘the permanent members, in their individual capacities, to pledge themselves to refrain from the use of the veto in cases of genocide and large-scale human rights abuses’: Note by the Secretary-General, UN Doc A/59/565 (2 December 2004) annex, para 256. Looking further back, the International Commission on Intervention and State Sovereignty (ICISS) had suggested that permanent members ‘should agree not to apply their veto power, in matters where their vital State interests are not involved, to obstruct passage of resolutions authorizing military intervention for human protection purposes for which there is otherwise majority support’: ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’ (December 2001) XIII (with the Commission stating at para 6.21 that this proposal came from a ‘senior representative of one of the Permanent Five countries’).

42 A point illustrated by reviewing the non-paper prepared by Japan to provide guidance on improving the Council's working methods that was included within the Japanese prototype for a handbook. See Permanent Mission of Japan to the United Nations, Handbook on the Working Methods of the Security Council (December 2006) annex 2, at <http://www.un.emb-japan.go.jp/jp/handbook.pdf>.

43 A copy of the April 2011 proposals can be obtained from the Swiss Mission's website collection (n 7).

44 UN Doc A/66/L.42 (28 March 2012).

45 Consultations with States led to revisions to the draft resolution, resulting in a second version (UN Doc A/66/L.42/Rev.1 (3 May 2012)) and a third version (UN Doc A/66/L.42/Rev.2 (15 May 2012)). The first version used the title ‘Improving the working methods of the Security Council’. The revised versions also included an additional operative paragraph to ‘stress’ that the resolution was ‘without prejudice to decisions on comprehensive Security Council reform’.

46 See paras 17 and 18 of the April 2011 proposal and the May 2012 resolution text respectively, both referencing the work of the Open-ended High-level Working Group on the Strengthening of the United Nations System from 1995 to 1997, which led to the adoption of the resolution, ‘Strengthening the United Nations System’, GA Res 51/241, adopted 31 July 1997, reprinted in UN GAOR, 51st Sess, Supp No 49, vol III at 48, UN Doc A/51/49 (1997). Para 56 of the resolution's annex called for a ‘more transparent’ Secretary-General selection process.

47 The Small Five subsequently advised the General Assembly that the permanent members ‘put considerable pressure on us not to submit our draft resolution for action. They tell us that our proposals are divisive and could be directed against them.’ UN Doc A/66/PV.108 at 5 (16 May 2012).

48 See also Question of equitable representation on and increase in the membership of the Security Council and related matters, GA Res 53/30, adopted 23 November 1998, reprinted in UN GAOR, 53rd Sess, Supp No 49, vol I at 39, UN Doc A/53/49 (1999) recording an agreement that future resolutions on Security Council reform would require a two-thirds majority vote. The legal advice was leaked to, or obtained by, a reporter.

49 On behalf of the S-5, Ambassador Paul Seger of Switzerland stated that with regard to the legal arguments, ‘with all due respect, we find that utterly wrong and biased’: UN Doc A/66/PV.108 at 5 (16 May 2012).

50 UN Doc A/66/PV.108 at 6 (16 May 2012).

51 Singapore was a member of the S-5, but is not a member of ACT.

52 Austria, Chile, Costa Rica, Denmark, Estonia, Finland, Gabon, Ghana, Hungary, Ireland, Jordan, Liechtenstein, Luxembourg, Maldives, New Zealand, Norway, Papua New Guinea, Peru, Portugal, Rwanda, Saint Vincent and the Grenadines, Saudi Arabia, Slovenia, Sweden, Switzerland, Tanzania, and Uruguay.

53 These six are Chile for 2014–15, Jordan for 2014–15, Luxembourg for 2013–14, New Zealand for 2015–16, Rwanda for 2013–14, and Uruguay for 2016–17. A seventh ACT State was also elected to serve for 2014–15, but Saudi Arabia declined to assume the seat because of what it called the ‘Security Council's inability to carry out its duties and assume its responsibilities’: Letter dated 12 November 2013 from the Permanent Representative of Saudi Arabia to the United Nations addressed to the Secretary-General, UN Doc A/68/599 (14 November 2013).

54 ‘Factsheet: The Accountability, Coherence and Transparency Group: Better Working Methods for Today's Security Council’ (June 2015) distributed by the Mission of Switzerland to the United Nations in New York, at <https://www.eda.admin.ch/content/dam/mission-new-york/en/documents/ACT-Factsheet-2015.pdf>.

55 A position emphasized in a statement made by Switzerland on behalf of ACT during the annual open debate on working methods held in 2013: UN Doc S/PV/7052 at 19 (29 October 2013).

56 ACT Factsheet 2015 (n 54) [emphasis in original].

57 ‘ACT: The Accountability, Coherence and Transparency Group: Better Working Methods for Today's Security Council’ (August 2013) distributed by the Mission of Switzerland to the United Nations in New York, at <https://www.eda.admin.ch/content/dam/eda/en/documents/aussenpolitik/internationale-organisationen/ACT%20Fact%20Sheet.pdf>.

58 ACT Factsheet 2015 (n 54).

59 See, in particular, Letter dated 1 June 2015 from the Permanent Representative of Switzerland to the United Nations addressed to the President of the Security Council, UN Doc S/2015/400 (1 June 2015) recommending a more open and transparent process for the nomination of candidates for the position of Secretary-General. This letter prompted the Council to hold its first discussion on the upcoming selection process on 22 July 2015 under ‘Any other business’: Letter dated 15 October 2015 from the Permanent Representative of Spain to the United Nations addressed to the Secretary-General, UN Doc S/2015/793 at 3 (15 October 2015).

60 See UN Doc S/PV.7052 at 19 (29 October 2013); UN Doc S/PV.7285 at 26 (23 October 2014); and UN Doc S/PV.7539 at 22 (20 October 2015).

61 See, for example, Letter dated 30 April 2014 from the Permanent Representative of Switzerland to the United Nations addressed to the President of the Security Council, UN Doc S/2014/312 (1 May 2014) commending the efforts of the Working Group to ensure the full participation of all Council members, while also using the opportunity to circulate an ACT proposal to establish a practice of designating co-penholders so as to foster more meaningful participation for non-permanent Council members.

62 As mentioned by Sweden during the annual open debate on working methods held in 2014: UN Doc S/PV.7285 (Resumption 1) at 7 (23 October 2014). Sweden also mentions the report, ‘Working Methods of the Security Council: A Tale of Two Councils?’ (Security Council Report, 2014) at <http://www.securitycouncilreport.org/special-research-report/security-council-working-methods-a-tale-of-two-councils.php>.

63 Bruno Stagno Ugarte served as Executive Director of Security Council Report from 2011 to 2014, Foreign Minister of Costa Rica from 2006 to 2010, and Ambassador to the United Nations from 2002 to 2006. He is a signatory to the November 2005 and March 2006 letters from the S-5, discussed at notes 35 and 36.

64 Letter dated 16 October 2013 from the Permanent Representative of Azerbaijan to the United Nations addressed to the Secretary-General, UN Doc S/2013/613 (17 October 2013).

65 On 15 December 2015, the President of the General Assembly and the President of the Security Council circulated an unprecedented joint letter marking the start of a reformed Secretary-General selection process: UN Doc A/70/623-S/2015/988 (17 December 2015). See also ‘Revitalization of the Work of the General Assembly’, GA Res 69/321, adopted 11 September 2015, UN Doc A/RES/69/321 (22 September 2015) to be reprinted in UN GAOR, 59th Sess, Supp No 49, vol III, UN Doc A/59/49 (2016) para 35.

66 Note by the President of the Security Council, UN Doc S/2015/944.

67 Liechtenstein's Ambassador Christian Wenaweser was also a signatory to the November 2005 and March 2006 letters from the S-5 discussed at notes 35 and 36. Both Wenaweser and Stagno Ugarte (n 63) have also served as President of the Assembly of States Parties to the International Criminal Court.

68 UN Doc S/PV.7539 at 22 (20 October 2015).

69 France and Mexico co-hosted a ministerial-level meeting on the proposed political declaration on the suspension of veto powers on 30 September 2015, with France later reporting that the initiative had received support from ‘80 other States on all continents’: UN Doc S/PV.7539 at 19 (20 October 2015). France, however, has led this effort, with French President François Hollande having, two years earlier, ‘propos[ed] that the permanent members of the Security Council define a code of conduct such that in cases of mass crimes, they may collectively decide to renounce the right of veto’: UN Doc A/68/PV.6 at 34 (23 September 2013). The French Foreign Minister also penned an op-ed column calling upon the permanent members to refrain from using the veto in situations of mass crime, but with an exception for cases where vital interests were at stake: see Laurent Fabius, ‘A Call for Self-Restraint at the UN’ New York Times (4 October 2013); Laurent Fabius, ‘Réformer le droit de veto au Conseil de sécurité’ Le Monde (4 October 2013).

70 UN Doc S/PV.7539 at 22 (20 October 2015).

71 UN Doc S/PV. 7539 at 19 (20 October 2015).

72 Statement by Ambassador Matthew Rycroft of the UK Mission to the UN at the ACT Group Event on the Code of Conduct, 1 October 2015 at <https://www.gov.uk/government/speeches/im-proud-to-say-that-the-united-kingdom-is-signing-up-to-the-act-code-of-conduct>.

73 The two countries joined the United States in vetoing a resolution to condemn the invasion of Panama. The draft resolution can be found as UN Doc S/21048 (22 December 1989). See further, United Nations, ‘Security Council – Veto List’ (undated) at <http://research.un.org/en/docs/sc/quick/veto>.

74 The official website for The Elders can be found at <http://www.theelders.org/>.

75 See, for example, ‘In Larger Freedom: Towards Development, Security and Human Rights for All: Report of the Secretary-General’, UN Doc A/59/2005 (21 March 2005) at paras 167–170.

76 ‘Strengthening the United Nations: Statement by The Elders’ (7 February 2015) at <http://theelders.org/sites/default/files/2015-04-22_elders-statement-strengthening-the-un.pdf>.

77 The Elders, ‘A UN fit for Purpose’ (undated) at <http://www.theelders.org/un-fit-purpose>.

78 ‘Strengthening the United Nations: Statement by The Elders’ (2015) (n 76) 2.

79 See, for example, the ‘1 for 7 Billion’ campaign at <http://www.1for7billion.org/>.

80 See, for example, the ‘She4SG’ campaign at <http://www.womansg.org/>.

81 See arts 21 and 72(1) of the UN Charter with respect to the General Assembly and the Economic and Social Council respectively. The Secretariat is a principal organ, but it is not composed of member States.

82 Russia, for example, takes the view that ‘the working methods themselves and decisions on their possible modification are the preserve of the Security Council’: UN Doc S/PV.7539 at 17 (20 October 2015).

83 See ‘Use of Arabic in the Subsidiary Organs ’, GA Res 35/219, adopted 17 December 1980, UN Doc A/RES/35/219, reprinted in UN GAOR, 35th Sess, Supp No 48 at 251, UN Doc A/35/48 (1981).

84 Kelsen reports that this, indeed, was also the practice under the Covenant for the League of Nations, with the League Council deciding whether a State was specially affected: H Kelsen, ‘Organization and Procedure of the Security Council of the United Nations’ (1946) 59 HarvLRev 1087, 1090–1.

85 See further F Soltau, ‘The Right to Participate in the Debates of the Security Council’ (2000) 25 South African Yearbook of International Affairs 1.

86 See Summary Report of Sixth Meeting of Committee III, Doc. 320, 14 May 1945 in Documents of the United Nations Conference on International Organization (San Francisco, 1945) vol 12 at 316, with attribution to the Netherlands. See also Report of Mr.’ Paul Boncour, Rapporteur, on Chapter VIII, Section B, Doc. 881, 10 June 1945 in Documents of the United Nations Conference on International Organization (San Francisco, 1945) vol 12 at 504 confirming that the committee's acceptance of the principle. See also Kelsen (n 84) 1093.

87 Simma, B, Khan, D-E, Nolte, G and Paulus, Andreas, eds, The Charter of the United Nations: A Commentary (3rd edn, Oxford University Press 2012) vol 1, 1039 .

88 Covenant of the League of Nations, 28 April 1919, (1919) 13 AJIL Supp 128, in force 10 January 1920, art 5. See further J Stone, ‘The Rule of Unanimity: The Practice of the Council and Assembly of the League of Nations’ (1993) 14 BYBIL 18.

89 Covenant of the League of Nations (ibid) art 5.

90 ibid, art 4.

91 UN Doc S/PV.1 at 11 (17 January 1946).

92 See ‘Interim Arrangements Concluded by the Governments Represented at the United Nations Conference on International Organization’ (26 June 1945) reprinted in Report of the Preparatory Commission of the United Nations, UN Doc PC/20 at 143–44 (23 December 1945).

93 From the memoirs of a Canadian diplomat who participated in the San Francisco conference, the Executive Committee, and the Preparatory Commission: Reid, E, On Duty: A Canadian at the Making of the United Nations, 1945–1946 (Kent State University Press 1983) 143 .

94 ‘Observations by the Acting Chairman on the Work of the Committee on the Security Council’ in Report by the Executive Committee to the Preparatory Commission of the United Nations, UN Doc PC/EX/113/Rev.1 at 44 (12 November 1945).

95 ibid.

96 ibid 45. Art 97 of the UN Charter provides that: ‘The Secretary-General shall be appointed by the General Assembly on the recommendation of the Security Council.’ Past interpretations of this provision have meant that the real decision-making is done by the Council, with the discussion and decision to be made ‘at a private meeting’ (Provisional Rules of Procedure (n 5) rule 48), although, practices have developed to make use of straw polls and informal consultations to gauge support and encourage, or discourage, certain candidates. For the 2016 selection, the Council and Assembly have agreed to pursue a more open process (see note 65), and candidacy information has been posted to the website of the President of the General Assembly at <http://www.un.org/pga/70/sg/>.

97 ‘Observations by the Acting Chairman on the Work of the Committee on the Security Council’ (n 94) 45–6. Australia and Canada appended a joint reservation to the committee's report to draw the attention of the Preparatory Commission to this last matter.

98 ibid 44.

99 ibid.

100 ibid 45.

101 Provisional Rules of Procedure (n 5) rule 18.

102 See ‘Language Rules Adopted at San Francisco by the Steering Committee of the United Nations Conference on International Organization’ followed by ‘Language Rules Proposed in the Report by the Executive Committee to the Preparatory Commission’ included as Appendix I to Report of the Preparatory Commission of the United Nations (n 92) 119–21.

103 See ‘Extract from the Summary Record of the Eighth Meeting of the Technical Committee on the Security Council, at which Language Rules were Discussed’ in Report of the Preparatory Commission of the United Nations (n 92) 122–3.

104 See Resolution 263 (1969) adopted by the Security Council on 24 January 1969, UN Doc S/RES/263 (1969); Resolution 345 (1974) adopted by the Security Council on 17 January 1974, UN Doc S/RES/345 (1974); and Resolution 528 (1982) adopted by the Security Council on 21 December 1982, UN Doc S/RES/528 (1982). The informal working language among Council members is English.

105 See ‘Extract from the Summary Record of the Fourth, Sixth and Seventh Meetings of the Technical Committee on the Security Council, concerning Rule 31 of the Rules of Procedure’ in Report of the Preparatory Commission of the United Nations (n 92) 125–9.

106 ibid 127.

107 ibid 125.

108 As explained at the Council's first meeting by Ambassador Zygmunt Modzelewski, the representative for Poland, and a former chairman of committee 2: UN Doc S/PV.1 at 3–4 (17 January 1946). Modzelewski would later be the Soviet candidate for the post of Secretary-General in 1950: Bailey, SD, The Procedure of the Security Council (Clarendon Press 1975) 2 .

109 UN Doc S/PV.1 at 11 (17 January 1946). For a discussion of its work, see Report of the Security Council to the General Assembly, UN Doc A/93 at 86–89 (3 October 1946).

110 The rules were amended at the 31st, 41st, 42nd, 44th and 48th meetings of the Security Council, on 9 April, 16 and 17 May, and 6 and 24 June 1946; at the 138th and 222nd meetings, on 4 June and 9 December 1947; and then at the 468th meeting on 28 February 1950.

111 See further UN Doc S/PV.31 at 116–18 (9 April 1946).

112 See further UN Doc S/PV.44 at 310–1 (6 June 1946).

113 Report of the Security Council to the General Assembly (1946) (n 109) 89.

114 UN Doc S/PV.2608 at 20, para 215 (26 September 1985).

115 ibid.

116 Bailey, SD and Daws, S, The Procedure of the UN Security Council (3rd edn, Clarendon Press 1998) 391 .

117 UN Doc S/PV.5968 at 15 (27 August 2008).

118 ibid 33. See also UN Doc S/PV.7285 (Resumption I) at 20 (23 October 2014).

119 Letter dated 24 July 2009 from the Permanent Representative of Egypt to the United Nations addressed to the Secretary-General, UN Doc A/63/965-S/2009/514 (14 September 2009) annex, para 66.9.

120 See, for example, para 82.9 of the Final Document of the sixteenth Ministerial Conference and Commemorative Meeting of the Non-Aligned Movement held in May 2011, annexed to Letter dated Letter dated 29 June 2011 from the Permanent Representative of Egypt to the United Nations addressed to the Secretary-General, UN Doc A/65/896-S/2011/407 (7 July 2011).

121 UN Doc S/PV.5968 (Resumption 1) at 9 (27 August 2008). See also Letter dated 29 August 2008 from the Permanent Representative of the Philippines to the United Nations addressed to the President of the Security Council, UN Doc S/2008/589 (2 September 2008).

122 The final report and recommendations from the Austrian Initiative, authored by its rapporteur Professor Simon Chesterman, then of New York University, can be found annexed to Letter dated 18 April 2008 from the Permanent Representative of Austria to the United Nations addressed to the Secretary-General, UN Doc A/63/69-S/2008/270 (7 May 2008). Recommendation 2 states: ‘… As part of a commitment to the rule of law, the Council should adopt formal rules of procedure rather than continuing to rely on provisional rules.’ On the initiative generally, see Bühler, KG, ‘The Austrian Rule of Law Initiative 2004–2008: The Panel Series, the Advisory Group and the Final Report on the UN Security Council and the Rule of Law’ (2008) 12 MaxPlanckYrbkUNL 409 .

123 UN Doc S/PV.6300 at 21–2 (22 April 2010).

124 UN Doc S/PV.6672 at 25 (30 November 2011). See also UN Doc S/PV.7052 at 28 (29 October 2013).

125 UN Doc S/PV.6300 at 27 (22 April 2010).

126 UN Doc S/PV.6672 at 15 (30 November 2011).

127 UN Doc S/PV.6870 at 33 (26 November 2012).

128 UN Doc S/PV.7285 at 14 (23 October 2014).

129 UN Doc S/PV.7285 (Resumption I) at 30 (23 October 2014).

130 UN Doc S/PV.6870 at 19–20 (26 November 2012).

131 Report of the Secretary-General, UN Doc A/2170 at para 102 (18 September 1952) as cited in Wood (n 1) 150.

132 See Stone (n 88) 42.

133 Aust, A, ‘The Procedure and Practice of the Security Council Today’ in Dupuy, R-J (ed) The Development of the Role of the Security Council (Martinus Nijhoff 1993) 365 .

134 It could be argued that unlike statutes and regulations, there is no legal hierarchy created by the Council's choice of format for publishing its decisions. See further Sievers and Daws (n 1) 374–5 and 448, fn 5. However, the analogy here is drawn on the basis of the substantive content found within the Notes.

135 See further Sievers and Daws (n 1) 429–30.

136 See generally Dedring, J, The United Nations Security Council in the 1990s: Resurgence and Renewal (State University of New York Press 2008). See also Cuéllar, J Pérez de, Pilgrimage for Peace: A Secretary-General's Memoir (St Martin's Press 1997).

137 See above n 16.

138 Bailey, SD, The UN Security Council and Human Rights (St Martin's Press 1994) 128 .

139 ibid.

140 Aust (n 133) 366.

141 See, for example, the French ‘Aide-mémoire concerning the working methods of the Security Council’ annexed to Letter dated 9 November 1994 from the Permanent Representative of France to the United Nations addressed to the Secretary-General, UN Doc A/49/667-S/1994/1279 (11 November 1994). See also the remarks of the French Foreign Minister, Alain Juppé, during the General Assembly's general debate of 1994: UN Doc A/49/PV.8 at 16 (28 September 1994).

142 See Letter dated 18 November 1994 from the Permanent Representative of New Zealand to the United Nations Addressed to the President of the Security Council, UN Doc S/1994/1313 (18 November 1994) and Note Verbale dated 6 December 1994 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General, UN Doc A/49/759-S/1994/1384 (6 December 1994).

143 For a transcript of the debate, see UN Doc S/PV.3483 (16 December 1994).

144 Provisional Rules of Procedure (n 5) rule 37.

145 Statement by the President of the Security Council, UN Doc S/PRST/1994/81 (16 December 1994).

146 Sievers and Daws (n 1) 397.

147 See n 134.

148 Sievers and Daws (n 1) 402. See also Talmon, S, ‘The Statements by the President of the Security Council’ (2003) 2 ChineseJIntlL 419 .

149 Annexed to Letter dated 6 September 2002 from the President of the Security Council addressed to the Secretary-General, UN Doc A/57/382-S/2002/1000 (6 September 2002).

150 Annexed to Note by the President of the Council, UN Doc S/2006/78 (7 February 2006).

151 Note by the President of the Security Council, UN Doc S/26015 (30 June 1993) and Note by the President of the Security Council, UN Doc S/26176 (27 July 1994).

152 Note by the President of the Security Council, UN Doc S/1994/230 (28 February 1994) and Note by the President of the Security Council, UN Doc S/1999/1291 (30 December 1999). A draft resolution in its final stage of negotiation is printed in blue ink and marked ‘provisional’: Sievers and Daws (n 1) 269.

153 See, in particular, Note by the President of the Security Council, UN Doc S/2002/199 (26 February 2002, reissued 22 May 2002).

154 Note by the President of the Security Council, UN Doc S/1999/1291 (30 December 1999).

155 See Malone, DM, ‘The Security Council in the Post-Cold War Era: A Study in the Creative Interpretation of the U.N. Charter’ (2002–03) 35 NYUJIntlL&Pol 487, 503–4, esp fn 51.

156 See Statement by the President of the Security Council, UN Doc S/PRST/1994/22 (3 May 1994); Statement by the President of the Security Council, UN Doc S/PRST/1994/62 (4 November 1994); Statement by the President of the Security Council, UN Doc S/PRST/1996/13 (28 March 1996). See also Winkelmann (n 1) 55–61. See also Resolution 1353 (2001) adopted by the Security Council on 13 June 2001, UN Doc S/RES/1352 (2001) annex II.

157 Note by the President of the Security Council, UN Doc S/2001/640 (29 June 2001).

158 Note by the President of the Security Council, UN Doc S/1999/165 (17 February 1999).

159 The name arises from their initial use by Ambassador Diego Arria of Venezuela in 1992, during his country's service as President of the Council. A background note prepared by the Secretariat in 2002, and reproduced in the Working Methods Handbook (n 3) 78–9, provides a description of the Council's practices relating to Arria-formula meetings. Council members view this as a guideline, rather than a rule, so as to maintain the flexibility of the Arria-formula meeting format, as explained by the outgoing Chair of the Documentation Working Group in 2006: UN Doc S/PV.5601 at 13 (20 December 2006). See also Sievers and Daws (n 1) 74 and their listing of all ‘Arria-formula’ meetings held 1992–2013 at 78–90. An updated table of Arria-formula meetings is available from Security Council Report.

160 Malone (n 155) 508–9. The NGO Working Group on the Security Council brings together 35 major NGOs for meetings with Council ambassadors and senior UN officials, among others. Its website is found at <http://www.ngowgsc.org/>. Global Policy Forum is an independent non-profit organization, based in New York that monitors the work of the UN. Its website is <https://www.globalpolicy.org/index.php>.

161 See Note by the President of the Security Council, UN Doc S/2000/155 (28 February 2000) Note by the President of the Security Council, UN Doc S/2002/964 (22 November 2002) and Note by the President of the Security Council, UN Doc S/2004/939 (2 December 2004).

162 Reports from the annual ‘Finnish workshop’ are made available the following April or May. See, for example, Letter dated 27 April 2015 from the Permanent Representative of Finland to the United Nations addressed to the President of the Security Council, UN Doc S/2015/292 (27 April 2015).

163 Rodiles, A, ‘Non-Permanent Members of the United Nations Security Council and the Promotion of the International Rule of Law’ (2013) 5(2) Goettingen Journal of International Law 333, 339–40. There remain challenges, however, with at least one quarter of the UN membership having never served on the Council: ‘Countries Elected Members of the Security Council’ (n 21).

164 Note by the President of the Security Council, UN Doc S/2006/507 (19 July 2006) superseded by Note by the President of the Security Council, UN Doc S/2010/507 (26 July 2010) [‘Note 507’]. It is understood that Japan is working on a third consolidation while a Council member for 2016–17.

165 Note 507 (n 164) para 1 (both versions).

166 Above n 42. The 2006 version became known as the ‘Blue Book’ while the 2010 version became known as the ‘Green Book’: Working Methods Handbook (n 3) 4–5. It was also agreed that the Working Group would have its own webpage, which became live in 2008: Report of the Security Council: 1 August 2007–31 July 2008, UN Doc A/63/2 (2008) at 243. See further: <https://www.un.org/sc/suborg/en/subsidiary/wgdocs>.

167 Working Methods Handbook (n 3) states expressly that it was ‘Published by the United Nations in cooperation with the Permanent Mission of Japan to the United Nations’.

168 Letter dated 20 June 2008 from the Permanent Representative of Switzerland to the United Nations addressed to the President of the Security Council, UN Doc S/2008/418 (24 June 2008).

169 Letter from the Representative of Belgium to the Secretary-General, UN Doc S/2008/528 (4 August 2008).

170 As aptly summarized in Report of the Security Council: 1 August 2008–31 July 2009, reprinted in UN GAOR, 64th Sess, Supp No 2 at 47, UN Doc A/64/2 (2009).

171 See the Swiss Statement to the Intergovernmental Negotiations on the Reform of the Security Council: Debate on ‘Working Methods’ Informal Plenary (7 April 2009) and the accompanying document entitled ‘S-5 Elements for Reflection’, available from the Swiss Mission's website collection (n 7).

172 See n 164.

173 Links to the concept papers and meeting records for the annual open debates on working methods can be found at <https://www.un.org/sc/suborg/en/subsidiary/wgdocs/s/2010/507>.

174 Reflected in Note by the President of the Security Council, UN Doc S/2012/402 (5 June 2012).

175 Reflected in Note by the President of the Security Council, UN Doc S/2013/630 (28 October 2013).

176 The top troop and police contributors to UN peacekeeping operations are Bangladesh, Ethiopia, India and Pakistan; however, a P5 State may in future join their ranks, with President Xi Jinping's announcement made during the 2015 general debate that China will contribute a standby peacekeeping force of 8000 soldiers: UN Doc A/70/PV.13 at 28 (28 September 2015). Statistics on troop and police contributors can be found at <http://www.un.org/en/peacekeeping/resources/statistics/>.

177 See n 97.

178 See further Letter dated 8 October 2014 from the Permanent Representative of Argentina to the United Nations addressed to the Secretary-General, UN Doc S/2014/725 (8 October 2014).

179 Statement by the President of the Security Council, UN Doc S/PRST/2015/9 (30 October 2015).

180 Bianchi, A, ‘On Power and Illusion: The Concept of Transparency in International Law’ in Bianchi, A and Peters, A (eds), Transparency in International Law (Cambridge University Press 2013) 1, 2.

181 ibid 6.

182 Hood, C, ‘Transparency in Historical Perspective’ in Hood, C and Heald, D (eds), Transparency: The Key to Better Governance? (Oxford University Press 2006) 3, 3.

183 See further, Ackerman, JM and Sandoval-Ballesteros, IE, ‘The Global Explosion of Freedom of Information Laws’ (2006) 58 AdminLRev 85 . See also Birkenshaw, P, Freedom of Information: The Law, the Practice and the Ideal (4th edn, Cambridge University Press 2010).

184 Brümmer v Minister for Social Development and Others, CCT 25/09, [2009] ZACC 21, para 62.

185 Bianchi, ‘On Power and Illusion’ (n 180) 8. See also Mitchell, RB, ‘Sources of Transparency: Information Systems in International Regimes’ (1998) 42 International Studies Quarterly 109, 109 (defining transparency as the dissemination of regular and useful information).

186 See, for example, the efforts of Transparency International at <https://www.transparency.org/>.

187 United Nations Economic and Social Commission for Asia and the Pacific, ‘What is Good Governance?’ (undated) at <http://www.unescap.org/sites/default/files/good-governance.pdf>.

188 Committee on Accountability of International Organizations, ‘Final Report’ in Report of the Seventy-first Conference held in Berlin, 16–24 August 2004 (International Law Association, 2004) 164, 172.

189 ibid.

190 ibid 172–3.

191 See, for example, Talmon, S, ‘The Security Council as World Legislature’ (2005) 99(1) AJIL 175, esp 186–8.

192 Hovell, D, ‘The Deliberative Deficit: Transparency, Access to Information and UN Sanctions’ in Farrall, J and Rubenstein, K (eds), Sanctions, Accountability and Governance in a Globalised World (Cambridge University Press 2009) 92 . See also Hovell, D, The Power of Process: The Value of Due Process in Security Council Sanctions Decision-Making (Oxford University Press 2016).

193 On the concept of proactive transparency, see Darbishire, H, Proactive Transparency: The Future of the Right to Information? (World Bank Institute 2010).

194 Many years have passed since the first live webcast of a Council meeting in 2002: Hulton (n 1) 246.

195 UN Doc S/PV.7539 at 11 (20 October 2015) (United Kingdom). The hashtag #workingmethods does not, however, distinguish between Security Council related comments and those concerning the workplace.

196 See the glossary in the Working Methods Handbook (n 3) 91.

197 Indeed, a purpose-built conference room, with access to simultaneous interpretation facilities, was built in 1978 to facilitate their use: Winkelmann (n 1) 53, fn 92.

198 See Note by the President of the Security Council, UN Doc S/1991/329 (28 February 1994); Note by the President of the Security Council, UN Doc S/1999/1291 (30 December 1999).

199 See, for example, A Tzanakopoulos, ‘Transparency in the Security Council’ in Bianchi and Peters (n 180) 371–2. See also Talmon (n 191) 186. For an earlier work, written prior to the issuance of the above-noted presidential Notes, see Feuerle, L, ‘Informal Consultation: A Mechanism in Security Council Decision-making’ (1985–86) 18 NYUJIntlL&Pol 267 .

200 See the discussion associated with n 106.

201 See the glossary in the Working Methods Handbook (n 3) 92.

202 As one legal adviser to an E10 State has explained, ‘groups of friends’ and other informal platforms for coordinating views from the wider UN membership play a significant role in assisting the E10 in their efforts to influence Council outcomes: Rodiles (n 163) 337. E10 members ‘do not only bring their interests to the table, they do often represent the views of their friends outside the Council, too; be it informal groups of like-minded States or the more traditional G77, the NAM or even regional organizations’ (ibid 371).

203 Consider, for example, the efforts of the P5 + 1 (Germany) with respect to the Iranian nuclear program.

204 Peters, A, ‘Towards Transparency as a Global Norm’ in Bianchi and Peters (n 180) 548 and 574–83.

205 For recent discussion encouraging ‘triangular’ dialogues between the Council, troop-contributing countries and the Secretariat, see ‘The Future of United Nations Peace Operations: Implementation of the Recommendations of the High-level Independent Panel on Peace Operations: Report of the Secretary-General’, UN Doc A/70/375-S/2015/682 at paras 61–63 (2 September 2015).

206 Rodiles (n 163) 371.

207 In writing about the Council's working methods in 2003–04, Hulton, then a senior political affairs officer within the UN's Security Council Affairs Division, and a former FCO legal adviser, also considered the notion of various concentric circles to be an apt description: Hulton (n 1) 241.

208 See n 86.

209 Security Council Report has developed a useful table of the Council visiting missions taking place from 1992 to 2016 at <http://www.securitycouncilreport.org/un-security-council-working-methods/visiting-mission.php>. This working method has its roots in discussions dating back to 1946, with the first formally designated ‘Security Council mission’ having taken place in 1964. See further Sievers and Daws (n 1) 492, esp 493. See also Hulton (n 1) 240.

210 As suggested by Russia at the 2015 open debate on working methods: UN Doc S/PV.7539 at 18 (20 October 2015).

211 See further Sievers and Daws (n 1) 92–4. See also, Security Council Report for a table indicating all known ‘informal interactive dialogues’ taking place from 2009 to 2015 at <http://www.securitycouncilreport.org/un-security-council-working-methods/informal-interactive-dialogue.php>.

212 Russia, for example, has complained that: ‘The number of speakers in open debates can exceed 100’: UN Doc S/PV.7539 at 17 (20 October 2015). During this debate, there was also praise for the efforts undertaken by six States to coordinate their views in advance such that only one State needed to make a statement. The six States were Angola, Chile, Jordan, Malaysia, New Zealand and Spain; all Council members at the time.

213 See Note by the President of the Security Council, UN Doc S/2014/268 (14 April 2014).

214 See the views of China at the 2015 open debate on working methods: UN Doc S/PV.7539 at 13 (20 October 2015).

215 See Note by the President of the Security Council, UN Doc S/2014/268 (14 April 2014). There appears to have been an earlier, but unsuccessful, effort to encourage reforms to the penholder system in 2011–12: Report of the Security Council 1 August 2011–31 July 2012, UN GAOR, 67th Sess, Supp No 2 at 246 (2012).

216 The wider application of the concept of accountability to the Council and its sanctioning regime is the focus of a special issue of the Journal of Conflict & Security Law, published as vol 19(3) (2014).

217 M Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’ (2007) 13(4) ELJ 447, 448. See further Bovens, M, Goodin, RE and Schillemans, T, The Oxford Handbook of Public Accountability (Oxford University Press 2014).

218 ibid 449.

219 Mulgan, R, ‘“Accountability”: An Ever-Expanding Concept?’ (2000) 78(3) Pub Admin 555, 555.

220 Bovens (n 217) 450.

221 ibid.

222 ibid 451. See also Mulgan (n 219) 556.

223 Security Council Report, ‘Adoption of the Security Council Annual Report’ (26 October 2011) at <http://www.whatsinblue.org/2011/10/adoption-of-the-security-council-annual-report.php>.

224 Note by the President of the Security Council, UN Doc S/1997/451 (12 June 1997) para 5.

225 Note by the President of the Security Council, UN Doc S/2002/199 (22 May 2002) para 2(a).

226 See further Security Council Report, ‘UN Security Council Working Methods: Annual Report to the General Assembly’ (4 February 2016) at <http://www.securitycouncilreport.org/un-security-council-working-methods/annual-report-to-the-general-assembly.php>.

227 A past practice that is recognized in Note by the President of the Security Council, UN Doc S/2012/922 (12 December 2012) para 9.

228 Note by the President of the Security Council, UN Doc S/2015/944 (10 December 2015).

229 Note S/2012/922 (n 227) para 11.

230 See the statement of the United Kingdom during the 2014 open debate on conflict prevention: UN Doc S/PV.7247 at 7 (21 August 2014).

231 See, in particular, ‘Prevention of Armed Conflict: Report from the Secretary-General’, UN Doc A/55/985-S/2001/574 (7 June 2001) paras 4, 16, 24 and 169.

232 ibid, paras 34–39. See also Resolution 1625 (2005) adopted by the Security Council on 14 September 2005, UN Doc S/RES/1625 (2005) para 3(a).

233 ibid, para 38.

234 Resolution 1366 (2001) adopted by the Security Council on 30 August 2001, UN Doc S/RES/1366 (2001).

235 Resolution 2171 (2014) adopted by the Security Council on 21 August 2014, UN Doc S/RES/2171 (2014).

236 See further EM Cousens, ‘Conflict Prevention’ in Malone (n 1) 101–15.

237 Romita, P, The UN Security Council and Conflict Prevention: A Primer (International Peace Institute 2011) 3 .

238 ibid, drawing upon the work of the Carnegie Commission on Preventing Deadly Conflict, which argued for a focus on operational and structural prevention efforts rather than the more costly activities of intervention and rebuilding. See further ‘Preventing Deadly Conflict: Final Report’ (Carnegie Commission on Preventing Deadly Conflict 1997).

239 Resolution 1366 (2001) (n 234) para 2; Resolution 2171 (2014) (n 235) para 3.

240 ACT Factsheet 2015 (n 54).

241 ‘Preventive Diplomacy: Delivering Results: Report of the Secretary-General’, UN Doc S/2011/552 (26 August 2011) para 12.

242 ‘Report of the High-level Independent Panel on Peace Operations on Uniting our Strengths for Peace: Politics, Partnership and People, annexed to Identical letters dated 17 June 2015 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council’, UN Doc A/70/95-S/2015/446 at 11 and 33 (17 June 2015).

243 ‘The Future of United Nations Peace Operations’ (n 205) para 34.

244 UN Doc S/PV.6360 at 18 (16 July 2010). Horizon scanning can also be a tool for strategic decision-making at the national level, with the United Kingdom having conducted a cross-government review of its own horizon scanning capacity in 2012, led by the then Chairman of the Joint Intelligence Committee, Jon Day.

245 See further Security Council Report, ‘Horizon Scanning Briefings’ (9 July 2015). See also Security Council Report, ‘In Hindsight: Making Effective Use of Any Other Business’ (1 April 2016).

246 Final Report (n 188) 238.

An earlier version of this work was presented as a Public International Law Research Seminar at All Souls College, Oxford in late 2015 and I remain grateful for the feedback received. Thanks are also due to Dapo Akande, Sam Daws, Jeremy Farrall and John Law.

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