Chapter 1:   THE CONSTITUTIONAL FRAMEWORK

Section 5:   Further documentation of procedures

 

2024 presidential note on working methods breaks new ground on document access for all Council members

 

The most recent update of the Security Council’s comprehensive presidential note on working methods – S/2024/507 – contains breakthrough measures for allowing elected Council members (E10) to access past relevant Council documentation. Prior to adoption of the note on 13 December 2024, de facto restrictions meant the E10 generally could access no unpublished documents circulated to Council members more than five months before the start of the elected members’ terms. In part, this stemmed from conflation of the matter of document access overall with a provision in prior presidential notes which invited the Secretariat “to provide all relevant communications of the Council to the newly elected members” several months before the start of their terms. Presidential note S/2019/993 had stipulated that this period should begin as from 1 August.

 

Our book, page 130, states that “The transition onto the Council has been described by some incoming elected members as ‘brutal’” and notes that it was in recognition of the difficulties faced by incoming members that presidential notes on working methods began, inter alia, to invite the Secretariat to provide all relevant communications to newly elected members several months in advance of the start of their terms. But although this circulation was originally for the clear purpose of familiarizing incoming members with the Council’s work, in the minds of some it came also to mean that irrespective of the relevance of prior documentation to matters presently before the Council, elected members’ access could not stretch beyond the period of advance circulation.

 

Prior to the 2024 negotiations which culminated in the adoption of S/2024/507, two elected members had complained in the Council’s Informal Working Group on Documentation and Other Procedural Questions (IWG) that they had been denied access to earlier documents which were necessary to their full and informed participation in certain subsidiary bodies. In one of these cases, the elected member had been unable to access a document related to the work of a subsidiary body of which that member itself was serving as Chair. Although some discussion on the issue followed in the IWG, at that time no concrete steps were agreed to address the situation.

 

It was during the 2024 negotiations on the new Note 507, under the leadership of Japan as IWG Chair, that Algeria again raised the issue of E10 documents access. The Algerian delegation had sought a document relevant to the work of a sanctions committee which was distributed to Council members prior to the start of its term. It was then that Algeria learned that although slightly different processes were in effect for the Council’s various subsidiary bodies, E10 were generally blocked from accessing unpublished documents dating before 1 August of the year before their terms began. Algeria and some other elected members then made test requests for prior documentation to several subsidiary bodies, which revealed inconsistent practices as to whether such requests should be acquiesced with, denied, or put to a non-objection procedure.

 

Thereafter, at several levels – among permanent representatives, political coordinators, and IWG experts – Algeria initiated discussion over the fact that without the same level of access to relevant documents as the permanent members (P5), elected members would have “blind spots” in their understanding of issues which would hamper their effective participation in Council proceedings and decision-making. This, in turn, Algeria argued, could undercut the effectiveness of the Security Council as a whole. Accordingly, Algeria proposed in the IWG that guidelines on prior documents access should be incorporated into the new Note 507 then under negotiation.

 

Study was made of the Council’s Provisional Rules of Procedure and past presidential notes on working methods, and only two provisions were found which dealt directly with the issue of prior documents access. One was the provision in Rule 56 restricting access to the verbatim records of private formal meetings. The second was Rule 57, which sets out an annual process for deciding whether any documents theretofore considered confidential should be made available to non-Council Member States – a provision which has never been implemented.[1]

 

Because otherwise nothing had previously been codified on the specific question raised by Algeria in the IWG, and owing to concerns over the sensitivity of certain types of unpublished documents, drafting new measures that would be acceptable to all Council members proved challenging.[2] In response to feedback, Algeria presented a series of revised draft measures, with the United Kingdom eventually becoming the main other interlocutor with Algeria in working out problem areas.

 

Agreement was finally reached in December 2024 to incorporate more than a page of guidelines on document access into the new Note 507. The principal enabling paragraph, No. 162 states that

 

“Effective throughout their term of membership, all members of the Security Council shall be granted the same level of access to documentation submitted to or originated by the Security Council or any of its subsidiary bodies, in line with the provisions as outlined in paragraph 163.”

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The majority of documents submitted to or originated by the Security Council and its subsidiary bodies which are not published relate to the work of the Council’s sanctions and counter-terror committees. Other documents commonly not published may include certain reports from the Peacebuilding Commission and reports of assessment missions.

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Criterion for access to prior documentation

 

Paragraph 163 of S/2024/507 sets out what in essence is a “need to know” requirement for elected members to receive access to older documents, in that it states

 

“When requesting a document submitted prior to its term in the Council, the requesting Council member should include a brief explanation as to how the additional documentation is relevant to the examination of an issue under active consideration.” (our emphasis)

 

Although it would be expected that elected members would of their own volition seek only those older documents relevant to ongoing Council work during their terms, this provision serves as an explicit reassurance to Member States, UN entities, regional organizations, and non-UN entities, among others, that their unpublished communications to the Security Council will remain generally confidential unless relevant to a matter under present consideration.

 

Procedures for documents access

 

The procedures for documents access set out in paragraph 163 of S/2024/507 are detailed, reflecting the serious negotiations undertaken in the IWG to ensure adequate safeguards for all those who have authored unpublished documents, and to allay any concerns over maintaining general levels of confidentiality for the work of the Council and its subsidiary bodies.

 

The first sentence of paragraph 163 reads:

 

“Elected members of the Security Council shall be granted immediate access, at their request, to existing Council documentation submitted to or originated by the Security Council or any of its subsidiary bodies, unless restricted by the provisional rules of procedure of the Security Council, relevant subsidiary body guidelines, a decision of the Council, or if it is a document authored by Member States or non-United Nations entities, including those submitted to the Ombudsperson or focal points for delisting, or if the originating author(s) has requested that the document in question remain restricted.”

 

Sub-paragraph (a) elaborates that if a requested document is not subject to any of the listed restrictions, immediate access will be granted “without a non-objection procedure”. Interestingly, although the general scenario envisaged is that there will be a single requesting Council member, sub-paragraph (a) provides that access to the document will then be granted “to all members of the Security Council or relevant subsidiary body” (our emphasis), thus ensuring that all fifteen members are fully aware of the contents of the document in question.

 

Sub-paragraph (b) then sets out a more complex procedure for accessing documents to which restrictions apply as the result of decisions by the Council or its subsidiary bodies in the form of

 

• The Provisional Rules of Procedure

• Relevant subsidiary body guidelines

• A decision of the Council

• A decision of the Council President

• A decision of the Chair of a subsidiary body

 

In any of such cases, a request for documents access will be put to a decision by the Security Council or subsidiary body via a non-objection procedure. As is normally the case concerning non-objection procedures, sub-paragraph (b) provides that objection by one member will be sufficient to block the requested action. Sub-paragraph (b) further provides that in the event of an objection, “a detailed notification shall be circulated to all Council or subsidiary body members”, and that in addition, “The opposing member is encouraged to provide a brief explanation of their position.”

 

Sub-paragraph (c) sets out the procedure to be followed in the case of documents “submitted by a Member State or any other non-United Nations entity”. Sub-paragraph (c) states that in such cases, “the members of the Security Council acknowledge the need to take into account the views of the author(s) to determine whether that document can be accessed.” To this end, sub-paragraph (c) provides that where relevant, the Council President or subsidiary body Chair “should seek the views of the originating author(s)”.

 

Sub-paragraph (c) then sets out three scenarios:

 

• If the author agrees to circulation of a document it has authored, access will be immediately granted to all Council members or members of the subsidiary body in question.

 

• If the author objects to circulation of a document it has authored, that document will not be made available. In such cases, the “decision of the objecting author(s) should be circulated to all members of the Security Council or subsidiary body for information”.

 

• If the views of the originating author cannot be sought, the Council President or subsidiary body Chair shall put the request to a decision via a non-objection procedure.

 

• If a member objects to circulation of the document, it will not be made available, and a detailed notification shall be circulated to all members, and the opposing member is encouraged to provide a brief explanation of their position.

 

• If no member objects, access will be immediately granted to all members of the Security Council or relevant subsidiary body.

 

Documentation repositories

 

Since around 2012, unpublished Security Council documentation has been stored on various secured, internal United Nations sites. The P5 generally have permanent and complete access to all Council documents stored electronically; elected members have unrestricted access to Council documents posted beginning five months before the start of their terms and then for the duration of the two years they serve on the Council.

 

The Security Council Affairs Division maintains storage of a considerable number of Council documents submitted to, or originated by, the Security Council prior to the establishment of electronic storage sites. However, as part of the Capital Master Plan renovations from 2008 to 2014, many older, unpublished hard copy documents were relocated from the Secretariat building to offsite archival storage and are less easily accessed. This situation is taken into account in paragraph 162 of S/2024/507 which states that

 

“Documents that are not accessible nor available in electronic or digital format may also be provided to members of the Security Council if requested, in line with the provisions as outlined in paragraph 163, in an appropriate format to be determined via consultation with the Secretariat, and mindful of the impact on existing resources.” (our emphasis)

 

Measures to assist the entry of elected members

 

As mentioned above, at one point some confusion developed between the rationale for circulating documents to incoming members five months prior to the start of their terms, and the idea that E10 access to documents relevant to ongoing Council matters should not stretch back before that period. The new measures now create a clear pathway for requests for prior relevant documents. And at the same time, in order to avoid any future confusion over the purpose of circulating communications to incoming members before the start of their terms, paragraph 161 in the new S/2024/507 now includes a clarifying phrase:

 

“The Security Council invites the Secretariat to provide all communications of the Council to the newly elected members for a period of five months, as from 1 August immediately preceding their term of membership, to familiarize them with the Council’s work.” (our emphais)

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Concluding observations

 

Historically, it has been extremely difficult for the Security Council as a whole to reach agreement on altering working methods which seem to reinforce disproportionate advantages of the Council’s permanent members vis-à-vis the elected members. For example, sharp divisions over creating more equitable practices with respect to the penholding of Council outcomes have persisted for the better part of this millennium. Similarly, years’ long efforts toward more equal burden-sharing with respect to the Council’s subsidiary bodies have not brought about significant change. Thus, Council members’ relatively rapid agreement on procedures to allow elected members access to relevant prior documentation is striking.

 

Key to this agreement was the development of a three-tier approach, comprising different procedures relative to 1) documents without restrictions, 2) documents with restrictions set by prior Council decisions, and 3) documents submitted by non-Council authors. The provision of non-objection procedures in the latter two cases gives to all Council members a degree of control over documents they consider to be highly sensitive. These are most likely to be documents relating to the work of the Council’s subsidiary bodies, especially as relates to listing, de-listing, and holds, as well as confidential information received from expert groups. The provisions allowing non-Council authors to restrict access to documents they have submitted was also important to reaching agreement.

 

The new measures reinforce a sense of legitimacy around the entitlement of elected members to have access to prior documentation necessary for them to fully participate in the present work of the Council. The measures also potentially reduce the chances that an elected member, particularly one serving as a subsidiary body Chair, will have insufficient information for taking reasoned decisions. The measures may even on occasion benefit permanent members which, for whatever reason, do not have a particular document as part of their own records. Overall, the new measures have the benefit of creating uniform practice for all requests for document access, including across all subsidiary bodies.

 

Concerning actual implementation of the new measures, it appears likely that requests for document access will be relatively infrequent. When they do occur, in cases where a non-objection procedure is required, it remains to be seen whether all or most requests lead to access, or are blocked by objections. If access requests are generally honoured, the measures will undoubtedly remain standard practice. If, however, frequent objections occur, discussion of equitable document access may resume in the Informal Working Group.

 

(This update supplements pages 12-18, 130, and 446-447 of the book.)

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[1] Rule 57 reads: “The Secretary-General shall, once each year, submit to the Security Council a list of the records and documents which up to that time have been considered confidential. The Security Council shall decide which of these shall be made available to other Members of the United Nations, which shall be made public, and which shall continue to remain confidential.” No volume of the Repertoire of the Practice of the Security Council published from 1946 to 2023 sets out any case of this provision having been implemented. The first edition of our book, The Procedure of the UN Security Council, written by the original author Sydney D. Bailey, confirms that “This Rule has never been applied, and it is unlikely that it will be applied in the future.” (Oxford, Clarendon Press, 1975, p. 306.) No decision was taken during the 2024 discussions in the IWG to revisit Rule 57.

[2] Full consensus of all 15 members is required for the adoption of notes by the Council President.