5 August 2022

Chapter 5:   CONDUCT OF MEETINGS AND PARTICIPATION

Section 6:   Motions, proposals, and suggestions

 

Backgrounder on the “penholder” practice for drafting outcome documents (with Table)

At a time when the Security Council is adopting more than 200 outcome documents per year, the role of “lead country” or “penholder” has never been more important. And yet the parameters of this practice are somewhat obscure. This is compounded by the fact that the Security Council itself does not publish an official list of the members which serve as penholders. However, there are some informal lists available, including a Table prepared by this website.[1]

 

 

 

 

In the past, several terms were in use to describe the drafter of Council outcome documents.[2] Around the beginning of this millennium, the term "lead country" became more common. This term is actually more accurate than “penholder”, since these Council members also generally are in the lead in proposing new meetings on their issues, as well as for preparing Council missions to the field. Nonetheless, the term “penholder” – a colloquial American expression employed in the US Congress – came into widespread use around 2010.[3] The term “penholders” was defined as “the Council members who initiate and chair the informal drafting process” by the Portuguese representative in 2012, when he was Chair of the Council’s Informal Working Group on Documentation and Other Procedural Questions.

 

A related article on this website details the history of penholding. In the Council’s earlier decades, penholding shifted more spontaneously among Council delegations. However, around 2003, a new arrangement came into being whereby a lead country tends uninterruptedly to “hold the pen” on a particular item for an extended period of time.

 

What marks this present arrangement is that in practice, the preponderance of fixed penholding, especially for country-specific matters, has been carried out by the “P3” – France, the United Kingdom and the United States. While this is sometimes referred to as the Council’s penholding system, it is important to keep in mind that these P3 penholders are self-designated, rather than having been appointed by the Security Council itself.

 

Today, it may look as though this arrangement was intended by the P3 to shut out other Council members, notably the ten elected members (E10), from having drafting opportunities. But in its origins, the system developed more to resolve the problem of France, the United Kingdom and the United States sometimes strenuously competing with each other to produce the draft that would gain traction. Carne Ross, a member of the United Kingdom delegation from 1997 to 2002, has described the “race” that often took place during those years when various Council members would rush to prepare and circulate preliminary drafts. In his 2007 book, Ross gives the example of what happened when, in 2001, the Council approached a critical decision to revamp the Oil-for-food Programme. After France and the United Kingdom each initiated draft resolutions, the United Kingdom draft eventually “became the only draft under discussion and the rival French draft fell away”. Ross commented that “For many of us, getting the first draft out was very, very important because you would then be chairing the expert consultations”. 

 

The present-day concentration of penholding primarily in the hands of only three Council members has been controversial for a number of reasons. First, it limits the opportunities for other Council members to draft outcome documents. Second, it gives the penholder control over the negotiations, a control which is sometimes used to resist changes proposed by other Council members. Third, this arrangement sometimes means that if the penholder chooses not to address certain developments, the Council may then fail to respond.

 

Somewhat surprisingly, in view of the criticism that has developed around fixed penholding, a 2014 Note by the President (brought forward in S/2017/507) appears to legitimize long-term penholding by stating that Council members

 

“support, where appropriate, the informal arrangement whereby one or more Council members (as ‘penholder(s)’) initiate and chair the informal drafting process. This informal arrangement, where appropriate, aims to facilitate timely initiatives to ensure Council action while preserving an element of continuity, with a view to enhancing the efficiency of the Council’s work.” (our emphasis)

 

The question has arisen whether a Council member, other than the customary penholder, can draft and submit for consideration their own text. The answer is that because the P3 penholders are self-appointed, other Council members are not obligated to respect their primacy. This point has been clearly addressed by presidential note S/2017/507, paragraph 79, which states: “Any member of the Security Council may be a penholder”.

 

Moreover, the Council’s Provisional Rules of Procedure make clear that it is permissible to have more than one draft on a particular matter. Rule 32 states that, “Principal motions and draft resolutions shall have precedence in the order of their submission.” If only one Council member was entitled to prepare an outcome document on a certain agenda item, there would be no need for a procedural rule governing more than one draft.

 

In practice, it is rare for another Council member to directly challenge an established penholder by tabling a competing draft resolution within the same timeframe, but this has occurred more often in recent years. In particular, the Russian Federation has put forward several competing drafts relating to Syria. This Table sets out the instances of different draft resolutions brought to a vote on the same matter since 2000:

 

 

 

The P3 permanent members “hold the pen” on ten or more items each, depending on how various agenda items are defined. France and the United Kingdom tend to be penholders for matters relating to their former colonies. This can have a mixed impact, because this position of influence can sometimes be resented by the States concerned, while at the same time it can also reflect the continuing existence of close diplomatic, economic, and linguistic ties. The United States serves as penholder on agenda items which are of priority strategic interest in American foreign policy, such as Iraq, the nuclear weapons programme of the Democratic People’s Republic of Korea, and Haiti.[4] 

 

The United States also considers itself the penholder on the Palestinian question. However, the Asia-Pacific or African Council members alternately holding what is known as the “Arab swing seat” on the Council have periodically put forward their own drafts, usually on behalf of the UN’s Arab Group.

 

The Russian Federation rarely serves as a fixed penholder, but it does so in the case of the UN Regional Centre for Preventive Diplomacy for Central Asia. China, earlier in this millennium, was briefly considered the lead for Somalia, but at present has no established penholding responsibilities.

 

Some odd penholding combinations exist among the permanent members. For example, three different permanent members “hold the pen” with respect to Somalia: The United Kingdom is penholder for the situation in Somalia overall, yet the United States is penholder generally for piracy off the coast of Somalia, while the Russian Federation is penholder for juridical issues relating to piracy off the coast of Somalia. The United Kingdom is penholder for situations in the Sudan, while the United States is penholder for relations between the Sudan and South Sudan, as well as for the situation in South Sudan.

 

Penholding for Syria has been diverse, involving both permanent and elected members, depending on the specific issue. On political aspects of the conflict in Syria, not only have France, the Russian Federation and the United States prepared draft resolutions, but also occasionally some elected members. The Russian Federation and United States hold the pen together on the UN Disengagement Observer Force (UNDOF) deployed in the Golan Heights. France, the United Kingdom and the United States have been the main penholders on the use of chemical weapons in Syria. In 2014, when the Council was deadlocked concerning the political situation in Syria, three elected members – Australia, Jordan and Luxembourg – came up with the idea of dealing separately with humanitarian aspects of the conflict, and successfully drafted resolution 2139 (2014). Thereafter, elected members have continued to co-penhold on the Syria humanitarian file, with Ireland and Norway presently filling that role.

 

In the first years after the new fixed penholding system came into play, incoming elected members mainly accepted the de facto apportionment of existing agenda items among the P3 as a fait accompli. What became more controversial were instances when a new country situation came before the Council and one of the P3 stepped forward to claim the pen, without giving other members the opportunity. This was the case, for example, in 2011 when the United Kingdom designated itself as penholder for Yemen. However, this pattern did not hold in 2021, when an elected member, Ireland, through its own initiative, was able to become the lead country when the Council began considering Ethiopia/Tigray.

 

The statement in S/2017/507 mentioned above, that “Any member of the Security Council may be a penholder”, was aimed in part at creating more possibilities for elected members. Prior to 2003, elected members were more active penholders. However, since then, elected members (E10) have acted as “lead” for relatively few country-specific items.

 

The rare long-term country-specific file which has consistently been handled by an elected member is Afghanistan. The lead countries for this question are usually agreed, at the beginning of each year, in conjunction with the designation of the bureaux of the Council’s subsidiary bodies. In prior years, elected members from the Asia-Pacific Group, the East European Group, and the Western European and Other States Group have alternatively served as penholders for Afghanistan, a role presently being filled by Norway. 

 

In 2017, Senegal became the penholder for The Gambia. Uganda, during its 2009-10 Security Council term, served as lead country on extending sanctions to Eritrea in the context of Somalia. More distantly in the past, items such as Timor-Leste and the situation between Eritrea and Ethiopia had elected members as penholders. However, none of these situations is any longer on the Council’s agenda. 

 

It is more common for thematic issues to have an elected member as the penholder. This is especially the case if an elected member has held a thematic debate on the matter during its Council presidency, or if it chairs a related thematic subsidiary body.

 

Elected members Egypt, Japan, New Zealand, Spain and Uruguay joined together to draft resolution 2286 (2016) on protecting medical facilities and personnel. In 2018, Côte d’Ivoire, Kuwait. the Netherlands and Sweden together drafted resolution 2417 (2018) on food insecurity and conflict. And in 2021, Ireland followed up a thematic debate organized by its presidency on peacekeeping transitions by drafting resolution 2594 (2021).

 

As examples of elected members who serve as penholders as a consequence of chairing a thematic subsidiary body, the Chair of the Council’s Informal Working Group on International Tribunals has drafted outcome documents concerning the International Residual Mechanism for Criminal Tribunals and the International Criminal Court. Gabon is presently filling that role. The Chair of the Working Group on Children and Armed Conflict, currently Norway, has served as lead country on that issue. 

 

However, for three thematic topics which the Council takes up with some regularity, permanent members are in the lead. The United Kingdom has consistently served as penholder on the protection of civilians. It has also been the lead country for general issues relating to women and peace and security, while the United States “holds the pen” on the question of sexual violence.

 

Because it is not likely that the P3 will cede their penholding roles anytime soon, elected members have pushed – at least as an initial improvement – for their greater inclusion as co-penholders. They feel this to be appropriate particularly for drafts which relate to country-specific situations concerning which they serve as chairs of relevant sanctions committees.[5] 

 

Co-penholding came to the forefront after the Council made a shift regarding its missions to the field. Traditionally, the lead country for a mission, responsible for drafting the terms of reference and leading meetings on the ground, had been the penholder – often a P3 country – on the item most closely related to the mission. However, after a particularly negative response by one receiving head of state to this practice, the Council members converted almost overnight to an arrangement pairing the penholder with an elected member, usually from the region, to serve as a co-lead.

 

This co-lead system has been very positively viewed as having given the Council’s missions to the field a more diverse and regionally appropriate dimension. And because co-leading for field missions has worked so well, some have pointed to this as a promising precedent for wider co-penholding on outcome documents.

 

Since then, a number of elected members have participated with P3 countries as co-penholders. In 2015, during the Council Presidency of Spain in October, that country became co-penholder with the United Kingdom for resolution 2242 (2015) on women and peace and security. In addition, Senegal and the United States shared penholding responsibilities for resolution 2320 (2016) on strengthening cooperation between the UN and the African Union. And in 2017, France and Italy worked together as co-penholders for resolution 2347 (2017) on the protection of cultural heritage during armed conflicts.

 

After the occurrence of these successful instances of co-penholding relative to thematic topics, the 2017 presidential note S/2017/507 for the first time provided in writing for the option of co-penholding by stating that “More than one Council member may act as co-penholders, when it is deemed to add value, taking into account as appropriate the expertise and/or contributions of Council members on the subjects.”

 

Thereafter, in 2019 and 2020, the United Kingdom and Germany coordinated together on drafting outcome documents on Libya and on the Sudan during the time that Germany chaired the two related sanctions committees. And in 2021 and 2022, the United States and Mexico have engaged in co-penholding on Haiti.

 

The two most recent examples of co-penholding between a P3 member and an elected member on a country-specific situation relate to Ukraine. For the political aspects of this conflict, Albania and the United States have agreed to work together as co-penholders. For the humanitarian aspects, France and Mexico have entered into a similar arrangement.

It should be noted that when serving as penholders or co-penholders, elected members have shown a capacity to prepare precise and credible outcome documents, demonstrating that they are qualified to competently handle the complexity of today's Council decisions. However, it is unlikely that in the near future, there will be any significant alteration of the present penholding arrangement whereby the P3 play a predominant role in the drafting of the Council’s outcome documents. Although France, the United Kingdom and the United States have self-appointed themselves in these roles, because this has now been the customary practice for about 20 years, to formally set up a different system would, by practice, probably require adoption of a presidential note. And since the P3 seem disinclined to give up their penholding roles, achieving the necessary consensus appears improbable.

 

Therefore, the present most realistic possibilities for diversifying the drafting of outcome documents lie both in wider use of co-penholding, and in giving Council members other than the P3 the opportunity to serve as penholders for situations newly taken up by the Council. The atmosphere around penholding can also be improved if, during the negotiations on texts, the penholders allow adequate time for a thorough discussion; make a conscientious effort to keep unnecessary bias out of drafts; and become more inclusive of proposals by other Council members.

Finally, it is essential that the attention justifiably being given to fair power-sharing with respect to penholding not overshadow the even more important question of how the Security Council can better achieve more streamlined, targeted and effective decisions. 

This update supplements pages 96, 127-129, 262, 267, 394, 433, 496 and 677 of the book.)

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[1] Another such list is published annually by Security Council Report. 

[2] Initially, as reflected in Rules 32 and 35 of the Council's Provisional Rules of Procedure, a country which puts forward a draft proposal was referred to as the “original mover”. During a debate in 1946 on the Provisional Rules of Procedure, the term “proponent” was also used in English. The term used in French – “l’auteur” (“author”) – further clarified the Council’s intention (S/PV.41). "Drafter" has also occasionally been used in English.

[3] "Penholder" has been translated as “rédacteur” in French, “redactor” in Spanish, and “автор” in Russian (S/2017/507).

[4] The United States normally prepares its drafts on Haiti in consultation with the relevant Group of Friends.

[5] Another article on this website details specific initiatives by the elected members to widen their opportunities for penholding. In particular, the point that E10 member chairs of sanctions committees should be included as co-penholders was set out in a letter to the Council President signed by all ten elected members.