Updated on 24 March 2016
Chapter 8: SUBSIDIARY BODIES
Section 5(e): Subsidiary bodies concerned with sanctions
Note by the President on the Council’s subsidiary organs
On 22 February 2016, the Security Council issued a Note by the President on the work of the Council’s subsidiary organs (S/2016/170). Although the guidelines contained in the new Note relate to the Council’s subsidiary organs in general, the Note was initiated by Venezuela, Council President for the month of February 2016, in the context of a debate which it convened on 11 February 2016 under the agenda item, “General issues relating to sanctions” (S/PV.7620).
The new Note by the President builds on earlier Notes which set out guidelines relating to the working methods of the Council’s subsidiary bodies, particularly S/2010/507, S/2012/937, S/2013/515 and S/2014/303, as well as the 2006 report of the Council’s Informal Working Group on General Issues of Sanctions (S/2006/997).
The guidelines set out in the new Note are grouped under four headings:
1. Improving the transparency of the subsidiary organs of the Security Council
2. Improving the process of selection of Chairs
3. Improving the preparation of Chairs
4. Improving the interaction and coordination among the subsidiary organs of the Security Council and between the subsidiary organs and the Council as a whole
Under the first heading of “transparency”, the new Note encourages all Chairs to continue to brief the Council in open Council meetings. This guideline represents an evolution in the Council’s practice, because in earlier years almost all Chairs of sanctions committees gave their periodic briefings to the Council in closed consultations. However, beginning in 2014, and mainly at the initiative of individual Chairs, several such briefings began to take place at public meetings. These initially included briefings on the sanctions with respect to the Central African Republic (S/PV.7215), Côte d’Ivoire (S/PV.7292), Libya (S/PV.7264), Yemen (S/PV.7175), and the Sudan (S/PV.7320).
Another guideline listed under the “transparency” heading encourages all Chairs to provide an agreed brief summary of relevant meetings of subsidiary organs to non-members. The concept paper prepared by Venezuela for the 11 February 2016 debate contained a broader proposal, that the Council institute “Regular circulation of detailed summary records of sanctions committees’ meetings”. However, this broader proposal was not supported by all Council members. For example, during the debate, the Russian representative said, “we question the proposals to publish reports and even verbatim records of the Committees’ meetings”. This, he asserted, “would essentially transfer the Committees’ work into an open format, which could negatively impact the effectiveness of their work and turn sanctions into a tool for bringing political pressure to bear.”
Also under the heading of “transparency”, the Note encourages all Chairs to seek the views of affected or concerned Member States and to foster early and periodic engagement and dialogue between them and relevant monitoring groups. This provision marks an enhancement of the Council’s earlier guideline in Note S/2010/507, whereby subsidiary bodies were encouraged merely to “seek the views of Member States that are particularly affected by the sanctions.”
In addition, the “transparency” section includes encouragement to all Chairs “to continue to travel periodically to regions applicable to their work to seek the views of and engage with affected or concerned States and explain and promote the objectives of the subsidiary organ’s mandate”. As noted on page 531 of the book,
“Visits to the regions concerned by Chairs of sanctions committees have also been encouraged by
the Security Council. In 1999, the Council adopted a Note by the President which stated that the
Chairs should make such visits, ‘as appropriate, in order to obtain first-hand accounts of the impact
of sanctions regimes and the results and difficulties in their implementation’ [S/1999/92]. This practice
was endorsed by the report of the Informal Working Group on General Issues of Sanctions in 2006 [S/2006/997], although such visits are not frequent, owing to budgetary constraints.”
Although both Council members and non-Council Member States have spoken in support of such travel, the budget for these official visits is modest, and accordingly many Chairs have had to travel at their own expense. Therefore, without greater availability of funding, this guideline is likely to prove difficult to implement.
The section in the new Note on “transparency” also includes a number of ways in which the Secretariat can ensure the broad dissemination of information about the work of the Council’s subsidiary bodies.
One point concerning “transparency” which was included in the concept paper prepared by Venezuela for the 11 February 2016 debate, but was not replicated in the new Note, was “Greater and clearer dissemination of information concerning the duration of sanctions, including actions to be undertaken by individuals and entities under sanctions in order to have sanctions lifted.”
The first paragraph which appears in the new Note under the heading “Improving the process of selection of Chairs” marks the second attempt by some Council members to address in a presidential note what many see as a flawed process. As stated on page 558 of the book, “According to the reports of successive Finnish Workshops, participants have said that the designation of bureaux was first decided among the permanent members, and that only later were the elected members consulted [see, for example, S/2012/190].” In a first effort to mandate greater participation by elected members in the selection process, a 2012 Note by the President (S/2012/937) set out the support of Council members for “an informal process with the participation of all Council members as regards appointing the Chairpersons of the subsidiary organs from among Council members in a balanced, transparent, efficient and inclusive way. . . To this end, the members of the Security Council should also consult informally with newly elected members soon after their election on the appointment of the Chairpersons of the subsidiary organs for the following year.”
However, by most accounts, no real change occurred in the selection process as a result of the guidelines set out in the 2012 Note. Reopening the question, the Venezuelan concept paper stated that the “Security Council should select the Chairs of sanctions committees in a balanced, transparent, efficient and inclusive manner, through dialogue and interaction among all Council members”. This latter phrase was not included in the guidelines on the selection process contained in the new 2016 Note. Rather, the new Note merely restates the 2012 Note’s formulation that the selection should be carried out through “an informal process with the participation of all Council members . . . in a balanced, transparent, efficient and inclusive way.”
The second paragraph in the new Note under the heading “Improving the process of selection of Chairs” encourages the early appointment of Chairs of subsidiary bodies as early as possible after each election of members of the Council. An earlier selection of Chairs has been advocated for some time by non-permanent members and the broader UN membership. In the past, the selection process on some occasions was finalized during the month just prior to when incoming members would be taking their seats on the Council, or even later, thus creating a rushed selection process and providing little time for an orderly handover from the previous Chairs.
If this new provision is implemented, elected members may have as many as six months to prepare for their chairmanships. That is because, as is described in another article on this website, the General Assembly decided in 2014 that beginning in 2016, non-permanent members of the Security Council would be elected “about six months” before they were to assume their responsibilities.
“Improving the preparation of Chairs”, the third heading of the new Note, reconfirms measures to be taken by outgoing Chairs and the Secretariat which had been set out in this connection in an earlier Note, S/2014/393. In addition, the new Note for the first time encourages “early consultations between sanctions monitoring teams, groups and panels and incoming Chairs.”
Finally, under the heading of “improving the interaction and coordination” among the Council’s subsidiary organs, and between the subsidiary organs and the Council as a whole, the Note breaks new ground in “Encouraging all Chairs, including those chairing subsidiary organs with similar themes and geographical scope, to meet regularly to discuss common concerns, best practices and ways to improve mutual cooperation”. The Note also encourages Council members to promote greater coordination between the Council as a whole and its subsidiary organs, when considering thematic or country-specific situations”.
Two additional measures were raised in Venezuela’s concept paper but did not receive consensus for inclusion in the new Note. One would have had the Chairs of subsidiary bodies and penholders hold regular meetings on improving coordination and sharing information. The other would have requested both expert groups and the Secretary-General to review the unintended impact of selective and sectoral sanctions.
The new Note by the President negotiated by the Council Presidency of Venezuela is a departure from the practice since 2006 that presidential notes on the Council’s working methods have been the outcome of deliberations in the Council’s Informal Working Group on Documentation and Other Procedural Questions (IWG). (Prior to 2006, each monthly rotating Council President chaired the IWG, thereby blending the two roles.) However, a precedent for the Council President initiating an outcome document on working methods was created in October 2015. As described in another article on this website, on 30 October 2015, ten days after the Security Council held an open debate on its working methods, the Council adopted a related Statement by the President (S/PRST/2015/19) under the lead of Spain as Council President.
One interesting possibility was raised during the 11 February 2016 debate. The Russian representative, speaking in support of constructive discussion of ways of increasing the effectiveness of the Council’s subsidiary bodies, stated,
“We think it would be helpful to turn to the under-utilized and regrettably half-forgotten mechanism
of the Informal Working Group on General Issues of Sanctions. There was a time when the Working
Group contributed significantly to increasing the effectiveness of the Security Council’s efforts in the
area of political and diplomatic settlements of crises around the world, and especially in the
maintenance of global security.”
As described in the book (pages 532-535), the Security Council established the Informal Working Group on General Issues of Sanctions in 2000, and tasked it with developing “general recommendations on how to improve the effectiveness of United Nations sanctions”. Six years later, the Informal Working Group completed its work, the outcome of which was contained in the Group’s 15-page report issued on 18 December 2006 [S/1999/997]. Three days later, the Security Council adopted resolution 1732 (2006), by which it took note “with interest of the best practices and methods contained in the Working Group’s report” and requested the Council’s subsidiary bodies “to take note as well”. The book notes that
“Some Council members had hoped that the Informal Working Group might continue to exist, so as
to be available to address future issues relating to sanctions, as necessary. However, other Council members did not want to create an open-ended evaluation process which might interfere with the
work of individual sanctions committees. Consequently, resolution 1732 (2006) decided that the
Informal Working Group ‘has fulfilled its mandate . . . to develop general recommendations on how
to improve the effectiveness of United Nations sanctions’. The Informal Working Group’s mandate
was thereafter allowed to expire on 31 December 2006.”
While there is no precedent in the Council’s practice for allowing a subsidiary body’s mandate to expire and then reinstating it, there is no legal reason why this could not be done. Alternatively, some subsidiary bodies have been terminated under one name, and then a successor subsidiary body with somewhat similar responsibilities has been established (see, for example, page 525 on the three successive sanctions regimes imposed with respect to Liberia, and the three different committees established to oversee them, and pages 547-548 on the establishment by the Council of UNMOVIC to replace UNSCOM in carrying out responsibilities relating to Iraq’s weapons of mass destruction).
In November 2014, Australia, during its Council Presidency, hosted a debate on general issues relating to sanctions, and raised the possibility of again establishing a subsidiary body to consider sanctions matters generally, but the idea did not win full consensus at that time. However, the idea may eventually gain traction, given the large number of sanctions committees currently maintained by the Council, and the complexity of their work.
At present, the Council has two other subsidiary bodies with generalized responsibilities relating to the mandates of individual subsidiary bodies. One is the Council’s Working Group on Peacekeeping Operations, established by a presidential statement in 2001. The Working Group considers general issues relating to peacekeeping operations established by the Council which, under most legal interpretations, are considered to be subsidiary organs of the Council. The other is the Informal Working Group on International Tribunals, which has considered matters relating to the International (Criminal) Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Residual Mechanism, which are subsidiary bodies of the Security Council.