A. The Broader Context

Security Council reform has long been a topic of interest, with many proposals focused on changes to the Council's structure as a means to improve perceptions as to the legitimacy of its powers. An early example of this connection can be found in the reform effort of 1963–65, which resulted in the only change, to date, to the number of seats on the Council. With the dramatic influx of new States in the UN from 1955 through to 1963,Footnote ⁸ the General Assembly was able to muster support for a resolution that declared the Council's composition to be ‘inequitable and unbalanced’Footnote ⁹ and further recognized that the increases in UN membership made it ‘necessary to enlarge the membership of the Security Council’ so as to provide ‘for a more adequate geographical representation’ and make the Council ‘a more effective organ’.Footnote ¹⁰ Although adopted with opposition,Footnote ¹¹ the resolution nevertheless initiated the process for amending the Charter of the United Nations.Footnote ¹² Upon receiving the required number of ratifications, and the support of the Permanent Five (P5) as required by Article 108 of the Charter, the amendment increased the number of non-permanent Council seats from six to ten.Footnote ¹³ The resolution also determined the geographic make-up for the ‘Elected Ten’ (E10), requiring five members from Africa and Asia, one from Eastern Europe, two from Latin America, and two from Western European and other States.Footnote ¹⁴

Subsequent efforts to secure further reforms have not, however, been successful, with competing proposals affected by State rivalries and differing strategic goals, as well as reform fatigue. Having identified interest in what has been termed the ‘question of equitable representation on and increase in the membership of the Security Council’,Footnote ¹⁵ the Assembly established an ‘Open-ended Working Group’ as a forum for the consideration of proposals.Footnote ¹⁶ But no consensus emerged as to the number or type of seats to be added, nor is there agreement on which countries should occupy which seats. Some groups of States, including the African Group,Footnote ¹⁷ the Group of Four (consisting of Brazil, Germany, India and Japan), and the L.69 Group (which espouses the interests of developing States),Footnote ¹⁸ want an increase in both permanent and non-permanent seats. Others, however, resist the creation of more permanent seats, arguing that this would compound existing inequalities, and prefer instead the creation of more non-permanent seats, possibly with different terms, to address regional representation concerns.Footnote ¹⁹ Meanwhile, through practice, some States have become semi-permanent members through repeated election, although Article 23(3) of the UN Charter does bar their immediate re-election.Footnote ²⁰ Japan is the prime example, having secured eleven terms on the Council, followed by Brazil with ten terms, Argentina with nine terms, and India and Pakistan each with seven terms.Footnote ²¹

Within the various groups, and within the discussions fostered by the Assembly's Open-ended Working Group, mention is also made of the need to reform the Council's working methods as well as the matter of the veto. For many States, the veto is seen as a right or privilege that flows from a particular category of membership, but for some States, the use of the veto is a working methods issue.Footnote ²² Russia, however, has stated repeatedly that the right of veto has ‘nothing to do with the working methods of the Council’.Footnote ²³ For its part, the Assembly's Open-ended Working Group has long characterized the veto as a membership or ‘cluster I’ issue, while working methods were considered ‘other matters’, or ‘cluster II’ issues.Footnote ²⁴

At the Millennium Summit in 2000, member States resolved to ‘intensify [their] efforts’ to achieve what was termed ‘comprehensive’ Security Council reform,Footnote ²⁵ and in 2005, they again confirmed that reform is needed in order to make the Council ‘more broadly representative, efficient and transparent and thus to enhance its effectiveness and the legitimacy and implementation of its decisions’.Footnote ²⁶ The 2005 World Summit Outcome document also contained a dedicated paragraph on working methods reform, mentioning specifically the need ‘to increase the involvement of States not members of the Council in its work, as appropriate, enhance its accountability to the membership and increase the transparency of its work’.Footnote ²⁷ Draft resolutions subsequently proffered by the African Group,Footnote ²⁸ the Group of Four,Footnote ²⁹ and the L.69 Group,Footnote ³⁰ as well as the Uniting for Consensus Group,Footnote ³¹ each mentioned the need for ‘improvements’ to the Council's working methods, some with more detail than others.

Hoping to reignite momentum, in 2007, the General Assembly decided to embark on a process of intergovernmental negotiations (IGN) on Security Council reform within the informal plenary of the Assembly itself, rather than within the Open-ended Working Group.Footnote ³² In 2008, an agreement was reached on the issues to discuss, with the Assembly formally deciding that ‘the five key issues’ for negotiation were the ‘categories of membership; the question of the veto; regional representation; size of an enlarged Security Council and working methods of the Council; and the relationship between the Council and the General Assembly’.Footnote ³³ The IGN process began in 2009, and remains ongoing, with the discussions organized around ‘the five key issues’. There is, however, a need to clarify that the inclusion of ‘working methods’ within the IGN process refers to matters directly related to securing Council expansion, and not the day-to-day improvements that can be accomplished within other fora, most notably within the Council itself.Footnote ³⁴

B. The Efforts of the Small Five 2005–12

Given the express mention of working methods reform in the World Summit Outcome, a group of like-minded States decided to join together in late 2005 to promote and advance the cause, focusing their efforts on the stated goals of increased involvement, greater accountability, and increased transparency. Composed of Costa Rica, Jordan, Liechtenstein, Singapore and Switzerland, the group became known as the ‘Small Five’ or ‘S-5’ group. Unfortunately for the S-5, however, their efforts operated in parallel with, and for many were inextricably linked to, the more politicized debates about Council enlargement, notwithstanding the fact that the S-5, in their first outreach to States, embraced the view that ‘enlargement and working methods are better served if dealt with in parallel and complementary processes’.Footnote ³⁵ In a subsequent effort, the S-5 emphasized that their efforts were concerned with ‘only one aspect of a comprehensive Security Council reform’.Footnote ³⁶ Nevertheless, the broader context of Council reform would be ever present, with some States clearly committed to the view that any discussion of the Council's working methods must fall within the ‘overarching framework’ of wider Security Council reform, whether or not others decouple these matters in their advocacy.Footnote ³⁷

Nevertheless, the efforts of the S-5 have had influence, even if that influence is not always acknowledged. For example, in March 2006, the S-5 brought forward a draft Assembly resolution focused exclusively on ‘Improving the working methods of the Security Council’.Footnote ³⁸ The resolution also made a number of specific suggestions ‘to further enhance the accountability, transparency and inclusiveness of its work, with a view to strengthening its legitimacy and effectiveness’.Footnote ³⁹ Among the measures suggested were calls for regular and timely consultations between Council members and non-member States, as well as enhanced Council consultations with troop-contributing countries, UN bodies, and regional arrangements. There was also a call for the P5 to provide reasons when using the veto power, with such explanations to be circulated as an official Council document, and it was further suggested that the veto should not be used in situations of genocide, crimes against humanity and serious violations of international humanitarian law.Footnote ⁴⁰ This last suggestion reflected proposals made during the lead-up to the 2005 World Summit, but did not reference expressly these sources.Footnote ⁴¹ While the draft resolution of 2006 was never put to a vote within the Assembly, nor formally discussed by the Council, the efforts of the S-5 likely helped secure Council support for a parallel effort being spearheaded by Japan to produce the first handbook on working methods in 2006.Footnote ⁴²

Five years later, the S-5 decided to try again, sending out a new set of proposals in April 2011,Footnote ⁴³ and then tabling a second draft General Assembly resolution on 28 March 2012,Footnote ⁴⁴ later entitled ‘Enhancing the accountability, transparency and effectiveness of the Security Council’ so as to highlight its link to the World Summit Outcome.Footnote ⁴⁵ As with the 2006 text, the 2012 text again proposed a series of measures to improve transparency and accountability with regard to Security Council proceedings and to foster dialogue between Council members and the wider UN membership. It also recommended that the permanent members refrain from using their veto power to block action aimed at preventing or ending genocide, war crimes or crimes against humanity, and as a new addition, it included a call for wider consultation in the appointment process for the next Secretary-General.Footnote ⁴⁶ But pressure from the P5,Footnote ⁴⁷ as well as procedural concerns, served to derail this effort, with media reports also suggesting that the UN Legal Counsel had advised that the matter related to Security Council reform and as such, would require a two-thirds majority vote.Footnote ⁴⁸ This was an interpretation that was not shared by all, including the S-5,Footnote ⁴⁹ but fearing the damage that could be caused to their long-term goals by either open opposition to the resolution, or the prospect of a procedural battle on the Assembly floor, or both, the S-5 withdrew the resolution before its scheduled debate.Footnote ⁵⁰

C. The Accountability, Coherence and Transparency Group

In May 2013, a new grouping of States was launched, calling itself the ‘Accountability, Coherence and Transparency Group’ and making use of the acronym ‘ACT’ and, on occasion, the verb ‘ACTion’. ACT aims to build upon the earlier work of the S-5 by mobilizing a larger network of States from different geographical regions to support those within the Council in favour of making improvements. Composed initially of 22 States, including four of the S-5 States,Footnote ⁵¹ and then growing to comprise 27 small and mid-sized States,Footnote ⁵² ACT also has six members serving concurrent terms on the Council.Footnote ⁵³ ACT's stated aim is to develop proposals to improve the working methods of what it terms ‘today's Security Council’, emphasizing that its reforms relate to the Council ‘in its present’ or ‘current composition’ so as to put aside, from a strategic perspective, the highly contested aspects of wider Council reform in order to focus efforts on the implementation of what it calls ‘concrete and pragmatic’ steps to encourage the Council to work in a ‘more transparent, accountable and inclusive way’.Footnote ⁵⁴ ACT's activities do not consider the questions of Council membership and expansion, nor do they aim to interact with the IGN process on comprehensive Security Council reform.Footnote ⁵⁵ To date, ACT's efforts have been coordinated by Switzerland, which had also assumed a leadership role within the S-5.

ACT has expressed a desire for changes both within the Council and in the Council's relations with all UN States, arguing for improvements in how States are informed about Council activities and ‘to the extent possible, involved’ in its decision-making process.Footnote ⁵⁶ In summary form, ACT wants more public and open meetings, more interactive briefings and substantive exchanges of views, enhanced consultations with the wider UN membership, and informal meetings organized by Council members with representatives of civil society, various UN bodies, and regional organizations. ACT has also called for a ‘fairer and more inclusive’ allocation of tasks within the Council, drawing attention to such matters as the process for deciding who chairs a subsidiary body or who ‘holds the pen’ for drafting a Council text. ACT has also called for a ‘more pronounced conflict prevention perspective’ to animate the Council in its work so as to identify potential risks and take action at an early stage. ACT has described itself as being composed of several teams working on different topics, on different tracks, that are advancing at different speeds.Footnote ⁵⁷ However, for 2015, ACT decided to focus on three areas of priority, specifically: the selection and appointment process for the next Secretary-General; the voluntary suspension of the use of the veto in situations of atrocity crimes; and improvements to the substance and analytic quality of the Council's annual report,Footnote ⁵⁸ (with ‘analytic’ being the word used to express a desire for the report to provide explanations and reasons for Council actions).

To date, ACT's activities have included the preparation of submissions to the CouncilFootnote ⁵⁹ and the dissemination of jointly agreed statements of position, particularly during the Council's annual open debate on working methods,Footnote ⁶⁰ as well as the close monitoring of the work of the Council's Informal Working Group on Documentation and Other Procedural Questions, with a view to influencing outputs and encouraging follow-up.Footnote ⁶¹ ACT also hosts formal and informal discussions among States, and supports efforts to disseminate accurate information and informative analysis concerning the Council's working methods. These efforts have included the co-hosting of seminars on the topic, including a March 2014 event with the NGO ‘Security Council Report’,Footnote ⁶² a leading not-for-profit organization known for its timely and informative analysis of Council matters. Security Council Report was led, at the time, by the former Foreign Minister, and former Ambassador of Costa Rica to the UN, with Costa Rica having been an S-5 State.Footnote ⁶³ The efforts of both ACT and Security Council Report were also acknowledged expressly in the concept note prepared by Azerbaijan in advance of the 2013 open debate on working methods.Footnote ⁶⁴

As for ACT's more recent efforts, by the end of 2015, the Council had taken steps towards the making of more open arrangements for selecting a new Secretary-General,Footnote ⁶⁵ and in December 2015, the Council released a note outlining changes to be made with respect to its annual reports.Footnote ⁶⁶ Led by the efforts of Liechtenstein,Footnote ⁶⁷ ACT has also broadened its approach to the veto, developing a voluntary code of conduct containing a pledge to support timely and decisive Security Council action in situations involving atrocity crimes, as well as a pledge not to vote against credible draft Security Council resolutions aimed at preventing or ending these crimes.Footnote ⁶⁸ Running in parallel with efforts led by France, and then by France with Mexico,Footnote ⁶⁹ to have the permanent members commit to a political declaration on the suspension of the veto in mass atrocity situations, ACT's code of conduct was pitched to all States, as either current or future potential Council members. The ACT initiative has attracted support from over 100 States, 82 of which gave their commitment in time for the Code's official launch in October 2015.Footnote ⁷⁰ Among the permanent members, both France (speaking with Germany),Footnote ⁷¹ and the United Kingdom, have given their support to the ACT code of conduct, although the latter required a modification to the text to ensure that it referred to a ‘credible’ resolution.Footnote ⁷² (It assists that France and the United Kingdom have not cast a formal veto since December 1989).Footnote ⁷³

Lastly, it should be noted that UN reform, including Security Council reform, has also attracted interest from the Elders, a group of global leaders led by former UN Secretary-General Kofi Annan,Footnote ⁷⁴ whose past efforts in pushing for reforms are well known.Footnote ⁷⁵ In February 2015, the Elders articulated a set of proposals,Footnote ⁷⁶ which would, in their view, make the Council ‘more democratic’ and ‘more representative of the world of today,’ while also making the UN more effective.Footnote ⁷⁷ While no mention is made of working methods reform as such, the Elders have called for the permanent members to pledge not to use, or threaten to use, the veto in crises where populations are threatened with mass atrocities; although, the Elders add the following qualifier: ‘without explaining, clearly and in public, what alternative course of action they propose, as a credible and efficient way to protect the populations in question’.Footnote ⁷⁸ The Elders have also called for a new process for choosing the Secretary-General; a topic that has also attracted civil society interest,Footnote ⁷⁹ as well as alternative campaigns, including those aimed at selecting the first female Secretary-General.Footnote ⁸⁰ There is concern, however, that restraint of veto initiatives and the Secretary-General selection process, much like the issue of Council expansion, divert attention from the efforts to secure enhancements in the Council's day-to-day procedures for making its decisions.

A. The Council's Role in Determining Its Rules

As is often said, the Council is the master of its own procedures, although this is also the case for other principal organs that are composed of member States.Footnote ⁸¹ Article 30 of the UN Charter makes clear that: ‘The Security Council shall adopt its own rules of procedure, including the method of selecting its President’. Thus, some have argued that Council working methods reform is a subject matter for the sole and exclusive consideration of the Council,Footnote ⁸² although Article 30 does not preclude the making of suggestions by others, with the use of Arabic being an example of an initiative that came from the General Assembly.Footnote ⁸³ In addition, the direction found in Article 30 does not stand alone, with Article 31 indicating that a specially affected non-Council-member State may participate, without vote, at the discretion of the Council,Footnote ⁸⁴ while Article 32 makes clear that ‘a party to a dispute under consideration by the Security Council shall be invited to participate, without vote’.Footnote ⁸⁵ In addition, under Chapter VII of the UN Charter, Article 44 provides for the participation in a Council decision on military action of those States that have placed their forces at the Council's disposal under Article 43. Since no State has entered into a special agreement under Article 43, Article 44 is of no direct application. However, its inclusion in the Charter reflects support for the view that troop-contributing countries deserve some degree of participation rights; a point expressed at the San Francisco conference of 1945 as the principle of ‘no military action without representation’.Footnote ⁸⁶

Like the Security Council, the League Council was similarly charged with determining its own procedures, although in practice, the League Council preferred to operate on an ad hoc basis. Indeed, the League Council did not adopt its own rules of procedure until 26 May 1933, 13 years after its first meeting in 1920.Footnote ⁸⁷ Some aspects of process were, however, determined by the organization's constitutive instrument, with decisions by the League's Assembly and Council, for example, requiring the agreement of all League members represented at the meeting.Footnote ⁸⁸ League practice, however, provides an early suggestion that process matters may well differ from substance, since ‘matters of procedure at meetings’ could be settled by a majority vote.Footnote ⁸⁹ It was also stipulated that non-Council members were to be invited to meetings concerning ‘the consideration of matters specially affecting the interests of that Member of the League’Footnote ⁹⁰  – a participatory approach that finds resonance within the UN Charter with respect to the Security Council.

Unlike its predecessor, the Security Council adopted its rules of procedure at its first meeting in 1946, ostensibly on an interim basis, with the rules being described and entitled as ‘provisional’.Footnote ⁹¹ These rules had been drafted by Committee 2 of the Preparatory Commission of the United Nations, which was the body established at the San Francisco conference in June 1945, reporting to an Executive Committee.Footnote ⁹² Some committee members, reflecting on their experience at the San Francisco meetings, were convinced that if the Assembly and Councils ‘did not, at the very beginning of their existence, adopt precise and detailed provisional rules of procedure they would wallow in lengthy and exasperating debates on procedure … that would interfere with the speedy and effective discharge of their duties’.Footnote ⁹³ However, not all agreed that there was a need for any detailed guidance, with some believing that the Council would have to operate not with rules but ‘in the light of its day-to-day experience’. Others argued that ‘in view of the very general nature of the provisions of the Charter … it would be helpful if a complete set of rules of procedure … were prepared’.Footnote ⁹⁴ Thus, the resulting recommendations made to the Council were something of a compromise, with the committee's representative concluding in 1945 that: ‘Like all compromises, it is not entirely satisfactory.’Footnote ⁹⁵

Pragmatism was to hold sway within the drafting discussions, as well as an understanding that any recommendations could, or would, be changed by the Council. Detailed recommendations concerning the conduct of Council business did not attract the support necessary for recommendation from Committee 2 to the Executive Committee, and from there to the Preparatory Commission, while some matters, such as the nomination and appointment of a new Secretary-General, were recognized as requiring the future development of special rules.Footnote ⁹⁶ The committee also drew up a list of matters for possible future inclusion in the Council's ‘permanent’ rules of procedure, with this list including the ‘pacific settlement of disputes; the taking of enforcement action;’ and rules on the Council's relations with other principal organs, including the Economic and Social Council.Footnote ⁹⁷

The method for selecting a Council President provides an apt example of the approach taken, where it was recommended ‘on practical grounds’ and as a measure that ‘will occasion least controversy’ to permit each State to serve as President for a one-month term, proceeding in the English alphabetical order of their names, because this would ‘allow each member of the Security Council, including those elected for one year only, to hold office in the first year’.Footnote ⁹⁸ (Egypt, Mexico and the Netherlands were then serving one-year terms, while Australia, Brazil and Poland were serving two-year terms). Several States thought that this method was to be used only for a ‘short initial period’,Footnote ⁹⁹ while France pushed for the French alphabetical order, noting that this would avoid having three of the permanent members serve sequentially (namely, the Union of Soviet Socialist Republics, the United Kingdom, and then the United States of America).Footnote ¹⁰⁰ Yet today, it remains the rule that the presidency is held ‘in turn by the members of the Security Council in the English alphabetical order of their names’ for ‘one calendar month’,Footnote ¹⁰¹ although innovation has allowed the chairs of subsidiary Council bodies to serve one-year terms.

Similarly, on the contentious matter of the languages to be used, both the Executive Committee and the Preparatory Commission opted for the continued use of the language rules that had been agreed at San Francisco for both the Council and the Assembly.Footnote ¹⁰² From a pragmatic perspective, such an approach would enable the new organs to begin their work without delay, while also ensuring that the question of principle was to be decided by the organ itself rather than the Preparatory Commission. But it also meant that of the five official languages then recognized, only English and French were designated as the working languages, meaning that these were the languages used for translations. Recognizing that both Russia and China were to be permanent Council members, and recognizing the probability of a Spanish-speaking country on the Council, the Soviet Union had argued that ‘the question of working languages was especially important for the proceedings of the Security Council’ and had only agreed to the proposed language rules as a temporary measure.Footnote ¹⁰³ It was not until the late 1960s that amendments were made to the Council's rules of procedure to recognize other working languages, with Spanish and Russian added in 1969, Chinese in 1974, and Arabic (as both an official and working language) in 1982.Footnote ¹⁰⁴

A third topic of controversy was the matter of access to the records of private meetings, it having been agreed that verbatim records would be kept of public meetings. The topic had attracted much debate, with the Executive Committee recommending that only a summary record should be kept of private meetings, and that access to these records should be limited to those who attended the meeting, and the Secretary-General, to encourage freedom of discussion. Several States objected to this proposal, viewing the Security Council as an organ that acted on behalf of the membership, and thus all members should have a right to access the records of its proceedings.Footnote ¹⁰⁵ It was also argued that there was a need for such access since it was recognized that the Assembly and the Council might well be dealing with the same matters simultaneously, while others argued for broad rights of access to enable the Assembly to serve their desired oversight role. Norway's delegate, however, made the prescient point that granting wide rights of access would lead the discussion of delicate matters to take place elsewhere, as between some or all members, in informal meetingsFootnote ¹⁰⁶ (which has indeed been the case, with official records kept for public (open) and private (closed) meetings, but not for informal discussions, even when formally organized). In light of the rotational nature of Council membership, it was also recognized that new members might need to consult past summary records, but even Syria, then a key proponent of rights of access, had recognized that the Council would need the discretion to limit access to records ‘dealing with persons, or with the application of sanctions’.Footnote ¹⁰⁷ In the end, the Preparatory Commission decided against recommending any rules providing a right of access to the records of private Council meetings, emphasizing that the issue was one for the Security Council itself to decide.Footnote ¹⁰⁸

B. The Permanence of the ‘Provisional’ Rules

Seventy years later, the rules of procedure that were adopted in 1946 are still largely in use today, and in light of their staying power, the provisional rules are, in practice, permanent rules. Immediately upon their adoption, a ‘Committee of Experts’ had been established to consider their further development,Footnote ¹⁰⁹ and its efforts resulted in several amendments to the rules from 1945 to 1950,Footnote ¹¹⁰ addressing such matters as the registration of communications from NGOs (indicating that Council–civil society interaction is not a new phenomenon),Footnote ¹¹¹ the participation of the Secretary-General at the Council,Footnote ¹¹² and the presentation of credentials—the latter being a topic not covered by the Preparatory Commission. The Committee of Experts was also responsible for combining the rules concerning the publicity of meetings and of records into one section, since it felt that ‘these matters were in fact closely allied’,Footnote ¹¹³ but stark divisions on matters such as voting led to committee stalemates and inactivity, and apart from the eventual resolution of the languages issue, the Council's ‘provisional’ rules of procedure have remained untouched since 1950.

From time to time, there have been calls for wholesale reform, often timed with key anniversaries. For example, at a 1985 Council meeting held to commemorate the UN's fortieth anniversary, the Deputy Prime Minister and Minister of Foreign Affairs for Egypt suggested that the various mechanisms of the Council would be ‘enriched and made more effective by updating and rationalizing the Council's rules of procedure’, noting that ‘despite their adoption 40 years ago, [the rules] remain provisional and not comprehensive or final’.Footnote ¹¹⁴ However, the Egyptian minister also expressed interest in making the rules ‘flexible enough to meet the requirements of international relations, taking into account the experience acquired over the years’;Footnote ¹¹⁵ with flexibility preserved by a degree of discretion. Ten years later, in the mid-1990s, similar calls to revise the rules and remove the ‘provisional’ designation could be heard within the Open-ended Working Group and during the General Assembly's debate on the Council's annual report.Footnote ¹¹⁶

In the mid-2000s, the call for revision appeared to attract greater interest, particularly from developing States, with some advocates now drawing upon a ‘rule of law’ theme for support (often along the lines of knowing the rules and having them consistently followed). The securing of change through discretionary practice also attracted scorn, with South Africa opining in 2008 that ‘as long as the rules of procedure of the Council remain provisional, those changes [made in practice] will always seem inadequate’.Footnote ¹¹⁷ The formalization of the Council's rules was strongly supported by the Non-Aligned Movement, ostensibly as a means to improve transparency and accountability;Footnote ¹¹⁸ with this position expressed in the Final Document of the Movement's high-level Summit Conference held in July 2009,Footnote ¹¹⁹ and in subsequent summit documents thereafter.Footnote ¹²⁰ For some, the continued use of ‘provisional’ rules is an anomaly to be addressed, but others, such as the Philippines, have argued expressly that the adoption of finalized rules would be an indication of the Council's commitment to the rule of law.Footnote ¹²¹ An initiative undertaken by Austria from 2004 to 2008 on the role of the Security Council in strengthening a rules-based international system provides support for this view, with the final report of the ‘Austrian Initiative’ also concluding in favour of the adoption of formal rules of procedure.Footnote ¹²²

These calls have continued into the 2010s, with Egypt, for example, continuing to remind the Council of the importance both it and the Non-Aligned Movement attaches to the issue of improving the Council's working methods,Footnote ¹²³ describing the replacement of the provisional rules as ‘an initial and concrete step’ towards wider improvements.Footnote ¹²⁴ This position also finds support within the African Group, with Sierra Leone in 2010 expressing a desire for ‘thorough reform’ in relation to the rules.Footnote ¹²⁵ While recognizing that change has occurred, those within the S-5 group have also described the provisional rules as being ‘neither adequate, nor adapted to the needs of today,’ noting how technological change has greatly accelerated the speed with which information is conveyed both within and outside the Council chamber.Footnote ¹²⁶ The approach of the S-5 has also attracted support from others, with Ireland in 2012, for example, calling for the adoption of formal rules of procedure so as to ‘add structure to the Council's working methods and … make them more transparent to the wider membership’.Footnote ¹²⁷ In 2014, Saint Lucia acknowledged ‘with disappointment that the rules of procedure continue to be provisional even 70 years after the Council's creation’;Footnote ¹²⁸ while India called for the adoption of ‘clearly defined working procedures … by the time our Organization celebrates its 70^th anniversary in September 2015’.Footnote ¹²⁹

In rebuttal, the United States, among others, has emphasized the need for the Council to retain its ability to act quickly, and with flexibility, albeit while working within long-standing rules.Footnote ¹³⁰ These are views shared by others, both permanent and non-permanent, with both efficiency and effectiveness being reoccurring themes within discussions on Council working methods. Indeed, Sir Michael Wood, writing in his personal capacity in the mid-1990s, reminded his readers of the 1952 warning by then UN Secretary-General Trygve Lie that: ‘The Council should not commit itself to procedures which in practice might prove to be excessively rigid, since each dispute with which the Council has to deal has unique characteristics.’Footnote ¹³¹ A similar appraisal was made years ago by Professor Julius Stone in relation to the League Council,Footnote ¹³² and the position also finds support in the words of another FCO Legal Counsellor, who explained succinctly at a 1992 workshop: ‘That they are described as “provisional” is not without significance. The Council can, and does, depart from them whenever it considers it necessary.’Footnote ¹³³

A. Working Methods and Presidential Notes

To focus solely on the rules of procedure would not, however, provide a complete picture as to the Council's working methods, given the reliance on developments through practice. Pragmatism and flexibility have led to innovation, with efforts having been made to enhance the transparency of the Council's activities and to engage in timely consultations with non-Council members, particularly with countries contributing troops to UN peacekeeping operations. Some of these changes have also received formal recognition from the Council through the adoption and publication of what are entitled ‘Notes by the President of the Security Council’. Although opaque in title, and thus not immediately accessible to the new diplomat or commentator, these Notes nevertheless serve in essence as written supplements to the Council's rules of procedure, much like regulations may assist with the application of a statute.Footnote ¹³⁴ In issuing a Note, the Council President is acting under rule 19 to represent the Council in its capacity as a UN organ, and thus presidential notes are considered consensus documents.Footnote ¹³⁵ However, unlike regulations authorized by statute, a change in the Council's working methods that is recognized in a Note may still lose support over time, without amendment, or fail to be implemented fully.

The main forum in which such Notes are developed is the Security Council's Informal Working Group on Documentation and Other Procedural Questions, albeit its enthusiasm for the task has ebbed and flowed. Established in June 1993, the Working Group's creation was itself a reflection of the renewed interest among States in the Council's methods for making decisions, following the dramatic increase in Council activities after the end of the Cold War.Footnote ¹³⁶ As noted above, increased State interest would also secure the establishment of an Assembly-based Open-ended Working Group on the matter of Council membership in the same year,Footnote ¹³⁷ but many States were also pushing for greater openness and transparency to come from the Council itself. As explained by the late Sydney Bailey in writings contemporaneous with this period, most Council decisions were ‘negotiated in private by two or three or five permanent members’, there was ‘rarely any public debate’, and once presented with a decision within the Council, ‘non-permanent members [were] expected to endorse it without being aware of the arguments pro and con’.Footnote ¹³⁸ It was thought that this approach would curb the use of Council meetings to deliver ‘political rhetoric’ to national audiences and ensure that the Council's work was ‘not delayed by the lengthy speeches of non-members’.Footnote ¹³⁹ But for others, the move away from public meetings towards the greater use of informal consultations was also explained as ‘the normal tendency of diplomacy reassert[ing] itself’.Footnote ¹⁴⁰

Not all, however, embraced this trend, with France, in particular, supportive of reforms in the mid-1990s.Footnote ¹⁴¹ France was also responsible, with the support of other Council members, notably Brazil and New Zealand,Footnote ¹⁴² for initiating the first ‘open debate’ on working methods within the Council,Footnote ¹⁴³ with the open debate meeting format being one that allows non-Council members to participate at the Council's invitation—a discretion that is exercised liberally in practice.Footnote ¹⁴⁴ The 1994 open debate also led to the adoption of the Council's first presidential statement on working methods, which was used to confirm the Council's intention, ‘as part of its efforts to improve the flow of information and the exchange of ideas between members of the Council and other United Nations Member States, that there should be an increased recourse to open meetings, in particular at an early stage in its consideration of a subject’.Footnote ¹⁴⁵ Presidential statements are ‘a means of conveying positions of the Council as a whole’Footnote ¹⁴⁶ and while no legal hierarchy is created by the Council's choice of format for publishing its decisions,Footnote ¹⁴⁷ it has been recognized that presidential statements, in contrast with resolutions, are a ‘useful format for taking a decision which the Council wishes to be perceived as an “intermediate” step’.Footnote ¹⁴⁸

Thus, it follows that since the mid-1990s, the Council has made a number of changes to its working methods, while still retaining its flexibility. Perhaps in response to calls for the codification of these changes, the Council has also authorized the circulation of a descriptive index to facilitate easier access to the relevant Notes and Statements, first in 2002,Footnote ¹⁴⁹ and then again in 2006,Footnote ¹⁵⁰ with technology now allowing for an up-to-date version to be made available online. Among the changes approved by the Council have been the publication of the Council's daily agenda and a tentative forecast of its future work;Footnote ¹⁵¹ the circulation to non-Council member States of draft resolutions near finalization (known as ‘resolutions in blue’);Footnote ¹⁵² the provision of more information on each sanctions committee and on meetings with troop-contributing countries in the Council's annual report;Footnote ¹⁵³ and the timely circulation of briefing notes on field operations to non-members of the Council.Footnote ¹⁵⁴ Efforts have also been made to enhance Council engagement (as distinct from Secretariat engagement)Footnote ¹⁵⁵ with prospective troop-contributing countries during mandate formulation,Footnote ¹⁵⁶ and to encourage the fuller participation of all Council members in the drafting of Council texts.Footnote ¹⁵⁷ The need to disseminate Council texts more widely has also been recognized,Footnote ¹⁵⁸ and through practice, the Council has developed a mechanism, known as an ‘Arria-formula’ meeting, to carry out informal and confidential discussions with invited experts and, from 2000 on, NGO representatives.Footnote ¹⁵⁹ (Council members also seek input from NGOs on their own and through the efforts of the NGO Working Group on the Security Council, first initiated by Global Policy Forum.)Footnote ¹⁶⁰

B. The Implementation of Change

The sustained implementation of change, however, remains a key concern, with some changes becoming more ingrained than others within the Council. The Council is also an organ with a changing membership, with the representatives of a new non-permanent member facing a bewildering array of presidential Notes and Statements, some of which become replaced by subsequent texts, as well as a potential deficit in institutional memory that may impact upon the maintenance of a new procedural practice. To this end, the Council has adopted practices to assist newly elected members,Footnote ¹⁶¹ and the Security Council Affairs Division of the UN Secretariat's Department of Political Affairs also has a ‘Security Council Practices and Charter Research Branch’ that can provide guidance to new members upon request. In addition, since 2003, the Government of Finland has sponsored an annual workshop for newly elected Council members, organized under the theme of ‘Hitting the Ground Running’ in cooperation with others.Footnote ¹⁶² However, it must also be recognized that there are different kinds of non-permanent members (NPMs). To borrow the phrasing used by one legal adviser to an NPM, ‘one might speak of ‘frequent-NPM’, ‘recurrent-NPM’ and ‘occasional-NPM’,’ with the occasional-NPM, and to some extent, the recurrent-NPM, needing time to become familiar with the Council's working methods and practices.Footnote ¹⁶³

To this end, and given the benefits of consolidation, as well as a desire to revitalize the work of the Council's Working Group on Documentation, the Japanese mission to the UN in New York used its chairmanship of the Group in 2006, and then again in 2010, to transform the collection of various Notes and Statements into a ‘concise and user-friendly’ guide to the Council's working methods, to become known as ‘Note 507’.Footnote ¹⁶⁴ Note 507 was adopted by the Council with a cover note acknowledging that the goal was to ‘enhance [the] efficiency and transparency of the Council's work, as well as [its] interaction and dialogue with non-Council members’.Footnote ¹⁶⁵ To facilitate implementation, Japan also put together a helpful handbook on working methods, which was later distributed to all member States.Footnote ¹⁶⁶ The Japanese-initiated handbook would later became a UN publication in 2012.Footnote ¹⁶⁷

The holding of an open debate on the Council's working methods can also serve as a means for encouraging implementation, with this being the acknowledged purpose of the 2008 debate organized at the request of the S-5.Footnote ¹⁶⁸ In the concept paper prepared in advance by Belgium to help focus the debate, attention was drawn to the 63 measures to which the Council had given its commitment in adopting Note 507 in 2006.Footnote ¹⁶⁹ The 2008 debate attracted the active participation of 47 States, with many calling for the Council to become ‘more efficient, effective, transparent, accountable and accessible’.Footnote ¹⁷⁰ A year later, the S-5 expressed disappointment that Note 507 had not become ‘part of the standard operating procedures’, using the Assembly's recently initiated IGN process to circulate a further set of recommended measures ‘to enhance the legitimacy, accountability and transparency of the Council's work’.Footnote ¹⁷¹ Then, in 2010, the Council agreed to hold another open debate on working methods, initiating what has now become an annual event, with each debate preceded by the distribution of a concept paper prepared by the chair of the Council's Working Group on Documentation to help focus the discussions. It was also after the 2010 debate that Japan led the efforts to revise and update Note 507, incorporating new information on both Council missions and informal interactive dialogues.Footnote ¹⁷²

Since 2010, there have been six more open debates on working methods hosted and held within the Council, in addition to the debates held in 1994 and 2008, with the title of the agenda item expressly emphasizing implementation.Footnote ¹⁷³ Through these debates, attention has been paid to the need for the Council to make use of meeting formats that encourage greater interaction, as well as consultation with the wider UN membership. The use of video-conferencing technology has also been embraced as a means for the Council to receive briefings from the field,Footnote ¹⁷⁴ while others have pushed for a greater emphasis on conflict prevention, suggesting that the Council receive more forward-looking briefings to help forecast future activities. There have also been calls for improvements in the Council's engagement with troop- and police-contributing countries,Footnote ¹⁷⁵ with China to serve as a possible future bridge,Footnote ¹⁷⁶ as well as calls for improved interaction with other UN organs, including the Economic and Social Council—an issue raised during the Council's founding in 1945–46.Footnote ¹⁷⁷ The legal aspects of the Council's procedures have also attracted scrutiny, with the 2014 open debate having focused specifically on the due process aspects of targeted sanctions and the question of Council follow-up to referrals to the International Criminal Court.Footnote ¹⁷⁸ There have also been eleven additional notes agreed to by the Council since the 2010 consolidation, and in October 2015, the Council issued a presidential statement confirming its desire to keep its working methods under continuous review ‘with a view to ensuring their effective and consistent implementation’.Footnote ¹⁷⁹

A. Transparency and the Security Council

Calls for openness or transparency in the Council's working methods have been ever present, with even the earliest discussions of Council procedures in 1945 having given rise to debates concerning private meetings and access to records. For most States, transparency is a principle that is asserted because it is ‘of unconditional virtue’ and ‘universally perceived as a positive value’.Footnote ¹⁸⁰ State representatives invoke the concept because it has resonance, even within international affairs, and regardless of whether it has a legal value of direct application to international institutions. As a legal principle, it is, at best, a ‘practice, norm, rule or principle … generally seen as ‘‘developing’’ or ‘‘emerging’’’, according to one recent study,Footnote ¹⁸¹ but that does not diminish its perceived normative value. Transparency, as a general proposition, is viewed as having various benefits, notwithstanding the critique that it is also a ‘pervasive cliché of modern governance’ that is ‘more often preached than practiced, more often invoked than defined’.Footnote ¹⁸² The availability of information about an institution and its activities is seen as a means to enhance knowledge and understanding, and as a tool to foster legitimacy, accountability, and good governance. Transparency is also valued as a means to enhance the abilities of others to participate in policy discussions and to hold decision-makers accountable by encouraging scrutiny and publicity. At the national level, where an increasing number of States have adopted access-to- or freedom-of information laws applicable to national decisions and activities,Footnote ¹⁸³ transparency has been described by legal authorities as ‘one of the basic values and principles governing public administration’.Footnote ¹⁸⁴

Defining transparency, however, is not an easy task, with one of the organizers of a recent study concluding that the concept is best understood as the dissemination of sufficient informationFootnote ¹⁸⁵ (putting aside the word's use in the fight against corruptionFootnote ¹⁸⁶ ). The inclusion of sufficiency within this definition conveys the need for enough information to be disclosed that is useful and relevant, while also accepting that valid reasons can also prevent absolute or full disclosure. At least one UN body has embraced a similar approach, defining transparency to mean that ‘information is freely available and directly accessible to those who will be affected by … decisions [taken] and their enforcement’ and ‘that enough information is provided …’.Footnote ¹⁸⁷ Others, however, also want to see how decisions are made, with a committee of the International Law Association on the accountability of international organizations having defined ‘the principle of good governance (or of good administration)’ to include ‘transparency in both the decision-making process and the implementation of the ensuing institutional and operational decisions’ as well as ‘access to information open to all potentially concerned and/or affected by the decisions at stake’.Footnote ¹⁸⁸ The committee also recognized that: ‘Transparency may in practice differ in format and modalities depending on the stage of the decision-making process.’Footnote ¹⁸⁹ However, it also put forward a policy position to the effect that non-plenary organs acting on behalf of an organization's membership ‘have a special obligation to act as transparently as possible, and should reduce as far as possible the number of non-public meetings’, with the footnotes clearly indicating that the committee had the Security Council in mind.Footnote ¹⁹⁰

To determine what is possible, context must be taken into account, with the practice of diplomacy having long recognized that complete transparency, at all times, would be counterproductive to international relations. Similar considerations apply to matters of defence and national security and many national information laws contain exemptions so as to ensure that communications with foreign governments, intelligence briefings and military plans do not become public, at least not without the passage of time. Cabinet proceedings are also exempt from disclosure at the national level, and indeed, it has been suggested that the principle of Cabinet confidentiality enhances decision-making by ensuring that members are free to express themselves unreservedly at the discussion table. The analogies for the Security Council are obvious, given its creation as an executive body of limited membership, with reporting obligations to a larger assembly, and given its powers in relation to matters of international peace and security. Where the analogy may end, however, is when the Council exercises the powers of a legislature, which leads in turn to demands for the deliberative process to be more open and transparent.Footnote ¹⁹¹ A case has also been made for greater transparency with respect to the Council's imposition of targeted sanctions against particular individuals, groups and properties.Footnote ¹⁹²

It may be an unpopular conclusion, but from the information provision standpoint, the Council is not opaque. It does allow a wide array of information on its activities to be made available, with advancements in information technologies enabling regular and timely access to anyone with an internet connection. In contrast with national executive bodies, access is given to the Council's daily and monthly work programmes; its tentative monthly forecasts; the verbatim transcripts of its formal meetings (the procès verbaux or ‘PV’ records); the final output of its decision-making as found in resolutions, presidential statements, and press statements; the related voting records; and the texts of letters and reports sent to the Council by third parties through the Office of the Secretary-General. Many documents are provided on a timely basis, with transcripts subject to short embargo periods to allow for corrections to be made, and in contrast with many national information laws, dissemination is provided on a proactive basis, without the necessity of a request for disclosure or any demonstration of an affected interest.Footnote ¹⁹³ Those so motivated can also watch live and archived videos of Council meetings and press conferences.Footnote ¹⁹⁴ Many Council members, both permanent and elected, also make information available through their mission websites, albeit the information provided by a mission will be curated to meet that State's particular goals and interests. Social media is also being used, with the representative from one permanent member reading his Twitter handle into the record of the 2015 debate on working methods to encourage further openness and interactivity.Footnote ¹⁹⁵

However, if transparency is defined to include the ability to oversee how decisions are made, then there are aspects of Council practice for which only limited information is made available, with critics having focused on the Council's long-established use of informal meetings that are closed to all but the 15 Council members and for which no public record is maintained. Termed ‘informal consultations’ or ‘consultations of the whole’,Footnote ¹⁹⁶ the use of this meeting format is not a secret,Footnote ¹⁹⁷ with their use being announced in the daily Journal of the United Nations, and while the meetings remain private (as in closed to non-members), commitments have long been made to provide non-Council States with post-meeting briefings as well as copies of any draft resolutions and statements that are introduced.Footnote ¹⁹⁸ Critics, however, complain that so much of substance takes place at these informal meetings that the Council's public meetings serve mainly as opportunities for voting on predetermined texts and the delivery of prepared statements.Footnote ¹⁹⁹ Rarely is it asserted that these statements, when provided, serve a reason-giving function by placing a State's position vis-à-vis a particular decision on the record, with reasons being an underlying goal of transparency. Moreover, without the prior engagement on an informal basis, there would not be a text coming forward for a vote. Indeed, there are times when the (more formal) informal consultations of the whole must be suspended to permit further informal discussions on a bilateral or multilateral basis in order to reach agreement.

Proponents of informal meetings view them as means to achieve efficiencies, with deliberations, away from the glare of publicity, perceived as more likely to foster the changing of minds and the reaching of compromise. After all, within many institutions, from national parliaments to university councils, it is not uncommon for proponents of new initiatives to circulate draft texts informally to some, if not all, the members of a politically diverse body in order to receive feedback, address specific issues through revision, and gauge support before presenting a text for its formal consideration. Such a process also ensures that initiatives without sufficient support do not occupy a body's formal meeting time. There is also the danger that requiring all meetings to be open and recorded will lead to time spent on posturing through the making of statements, some aimed at national audiences, and the non-attendance of ambassadors and deputy permanent representatives in favour of more junior staff. Moreover, as a practical matter, and one that was recognized during the earliest discussions of Council procedures,Footnote ²⁰⁰ any move to require informal consultations to be open and transparent would surely mean that some or all Council members would meet in advance, in private, and elsewhere. Indeed, diplomacy throughout the UN system (and elsewhere) relies on various forms of informal meetings, at various levels (from ambassador to political coordinator to legal adviser), at missions and in capitals, with off-the-record ‘informal dialogues’Footnote ²⁰¹ taking place between a number of subsets of Council members, including the P3, the P5, some or all of the E10, including those E10 members involved in the Non-aligned Movement (NAM), and Council members in regional groupings.Footnote ²⁰² Some Council initiatives may also include non-Council States.Footnote ²⁰³

Underlying any call for more transparency is a need for clarity as to the extent of the demand, recognizing from our experience with national public law that concepts such as transparency and participation are applied flexibly, taking into account context. As Anne Peters has suggested in a recent study: ‘A reasonable measurement of global transparency might require that international actors maintain websites, and publish the legal acts they produce, …’ but a ‘different matter is access to deliberations, drafts, and working documents whose publication is more than the final decisions’, adding ‘subject to counter-veiling considerations’, to encourage the weighing of both the negative and positive effects of transparency on deliberations.Footnote ²⁰⁴ (The provision of briefings to non-Council States after informal consultations of the whole suggests an attempt to balance such considerations.) If transparency means the regular and timely dissemination of sufficient information, then the Security Council has become more transparent over time, even with room for improvement. It is for this reason that seasoned diplomats, including those working within ACT, focus their calls for reform on the continuing implementation of agreed changes in practice, or on specific proposals for improving those practices, rather than generic, undefined calls for greater transparency (although such calls can have great purchase with external observers, including the media and NGOs). Efforts have also been made to demystify the Council's processes through the preparation of handbooks and the creation of dedicated webpages providing access to the relevant Notes. But if transparency means the disclosure of all compromises reached through consultations, or the motivations or negotiating scope for the P5, then the Council will never qualify as transparent.

B. Engagement with the Views of Others

Related to, and often intertwined with, the calls for the Council to be more open and transparent is a long-standing call for the Council to be more receptive to the views of others, whether expressed as desires for consultation, greater engagement (or interaction), or fuller participation. There are, however, various ‘others’ to which these calls may relate, ranging from the non-permanent members of the Council, who wish to be more fully involved in drafting Council products and determining Council policies, to the specially affected non-Council States and the parties to a dispute, as well as neighbouring countries, who wish their views to be heard before a Council decision is made, to prospective troop- and police-contributing countries, who need advance warning in order to plan and wish to express their views before being asked to deploy their national assets.Footnote ²⁰⁵ In addition, the ‘others’ to which the desire for fuller engagement relates may also include senior UN officials and other UN organs, other international organizations including regional and subregional organizations, all UN member States (often expressed as ‘interaction with the wider UN membership’), and external experts, including NGOs. There is also variety in the desired modalities for securing greater engagement and interaction, ranging from access, attendance and observation to the sharing and presentation of views, as well as timing issues, with many wanting their interaction to take place at an earlier stage so as to have influence. Some methods of engagement are also private and off-the-record, and deliberately so, to encourage the frank sharing of views and the asking of questions. Non-permanent Council members—having a ‘greater sensitivity towards the needs and views of “the rest”’—may themselves also serve as informal channels for wider engagement.Footnote ²⁰⁶

As with transparency, words such as access, engagement, interaction, consultation and participation are invoked by State representatives because they have resonance and a perceived intuitive value, rather than direct legal application, within these discussions. The variety of words used suggests varying degrees or depths of desired engagement and inclusion, representing various concentric circles around the Council,Footnote ²⁰⁷ with those within the inner rings having greater claims to more active forms of participation, including consultation and the hearing of views in advance of a particular decision being made, while those in the outermost rings may wish to be informed of new developments or to provide the Council with more generalized views. A State or entity's assignment within the circles may also change depending on the issue or context, with the potential use of military force, for example, bringing troop-contributing countries within an inner circle, foreshadowed by the principle of ‘no military action without representation’.Footnote ²⁰⁸ There also appear to be two underlying functions at play, with some mechanisms to enhance engagement helping the Council to gather information, while others seek to assist non-Council members with respect to their desire to exert a potential influence on Council decision-making.

The Council's use of visiting missions, Arria-formula meetings, and informal interactive dialogues provide examples of the above, with these mechanisms serving purposes of information gathering, as well as consultation and outreach. There have been over 50 Council visiting missions since 1992,Footnote ²⁰⁹ with some serving a fact-finding purpose, while others serve to convey a Council message of heightened interest in a particular situation or support for a reconciliation process. Visiting missions may also result in written, as well as oral, reports. Also since 1992, the Council has made use of Arria-formula meetings to engage in frank, informal and timely discussions with a variety of Council outsiders, including specially affected States, high-level UN officials, the heads of international organizations, and civil society representatives. However, while flexibility within the rules allows for these meeting formats to develop, their use may come at a cost to transparency, with there being no record or specific outcome arising from Arria-formula meetings, as well as some grumblings about their cost and the choice of who is selected for participation.Footnote ²¹⁰ The Council has also developed the format of an ‘informal interactive dialogue’ to hold off-the-record discussions with international and regional organizations, UN officials, and non-Council States on situations that affect them directly.Footnote ²¹¹ As for participation from the wider UN membership, open thematic debates are another Council innovation in working methods enhancing participation, although States need to exercise restraint so as to avoid turning such debates into posturing opportunities, and to give more consideration to the coordination of their statements, so that one State can speak for several to address concerns about the efficient and effective use of Council time.Footnote ²¹²

There remains, however, the need to ensure the full participation, at the centre of the concentric circles, of all Council members. To this end, the Council has made a number of commitments that recognize that its elected members should be involved from an early stage in the Council's activities;Footnote ²¹³ however, one also hears permanent members calling for ‘more adequate consultations’ with all Council States.Footnote ²¹⁴ Legitimacy concerns lead to a need to address perceptions, if not the reality, that certain topics or situations ‘belong’ to one particular Council member or another, or that certain Council members can dictate, through a series of initially limited and then staged consultations, the content of Council products. To this end, recent initiatives to secure the Council's agreement that any Council member can ‘hold the pen’ with respect to initiating and steering the negotiation of Council texts will be worth tracking in future research to measure their impact with respect to encouraging full participation.Footnote ²¹⁵ The designation of co-penholders might also improve collaboration at the crucial early stages of negotiation between more Council members.

C. Accountability and the Security Council

Accountability is another concept that is often invoked in discussions concerning the Security Council, including its working methods.Footnote ²¹⁶ As with transparency, with which it is often joined, accountability is an evocative word, embracing ‘one of those golden concepts that no one can be against’,Footnote ²¹⁷ even though its content remains unclear and contested. Accountability can have political, legal and financial meanings, depending on the context. It can also be used as an ‘umbrella concept’ encompassing various markers of good governance, including fairness, efficiency, and integrity.Footnote ²¹⁸ However, at its core, accountability must refer to the giving of an account for one's actions,Footnote ²¹⁹ but it must mean more than the mere provision of information as this can be achieved through transparency reforms. Information, once set free, requires evaluation and analysis in order to inform, and thus, accountability is more usefully defined as an ‘obligation to explain and to justify conduct’, which in turn implies the need for a forum in which to receive the account.Footnote ²²⁰

In his work on unpacking the meaning of accountability, Mark Bovens concludes that: ‘Accountability is a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgment, and the actor may face consequences.’Footnote ²²¹ As Bovens explains, to be effective, an accountability forum must have the ability to pose questions, so as to query the adequacy of the account or the legitimacy of the conduct, as well as the ability to pass judgment, such as through the approval of a report, the denunciation of a policy, or the condemnation of an action. For some, the judgment by the forum, or just the three stages of reporting, justifying and debating, are sufficient to qualify a relationship as one of accountability, although there is debate as to whether the possibility of sanctions (or consequences to use Bovens’ term), is also required so as to differentiate the provision of information from being held to account.Footnote ²²² Accountability, however, is also contextual, and thus the need for, and what counts as, consequences may vary according to the context.

Applying a narrow and nuanced understanding of what is meant by accountability for an international institution may help identify those aspects of Council practice on working methods that would benefit most from continuing or further reforms. Since its inception, the Council has been obliged by Article 24(3), read with Article 15(1), of the UN Charter to submit an annual report to the General Assembly that gives ‘an account of the measures … decided upon or taken’. These annual reports can serve as a source of information about the work of the Council. However, for the annual report to serve as a vehicle for accountability, as distinct from a vehicle for enhancing transparency, the report must contain more than a descriptive listing of meetings held, decisions made, and letters received; a point that finds support in the repeated calls for the annual report to be more ‘analytical’ (or reasoned). Requiring the Council to provide an analysis of its past conduct leads to the provision of explanations and justifications, which in turn may serve as a tool through which past lessons may be learnt or further explored. By encouraging learning and reflection, accountability can also serve as a means to improve the Council's effectiveness. However, to serve as an accountability forum, the General Assembly must also embrace its role vis-à-vis the report. It must probe and ask questions, and provide feedback to assist with the learning objective, with the Assembly's debate concerning the Council's annual report often overshadowed by a focus on the broader issue of the Council's composition. Indeed, it was not until 2011, that the annual report was listed as an Assembly agenda item separate from the issue of equitable representation and membership.Footnote ²²³

It is also true, however, that dissatisfaction with the Council's annual report has existed for some time, leading to a number of proposals for reform. Most of the report is prepared in draft by the Secretariat and then approved by the Council. However, since 1997, Council Presidents have been encouraged to provide ‘brief assessments on the work of the Council’ that are then appended to the annual report, albeit with a warning that these ‘should not be considered as representing the views of the Security Council’.Footnote ²²⁴ Since 2002, the focus has shifted to the report's introduction as the means for stimulating the desired assessment of past events and identification of areas for improvement. Over time, however, the introduction has lost its analytical edge. The introduction is prepared by the Council member holding the July presidency; however, with a reporting period running from August 1 to July 31,Footnote ²²⁵ and membership terms running from January to December, there have been times when the State preparing the introduction was not even part of the Council for part of the period on which it was reporting.Footnote ²²⁶ The sharing of a draft with other Council members (immediately past and current) was one practice that developed to assist, but this can also lead to disagreements about analytical content that are then resolved, when time is short, by resorting to factual accounts. Some drafters have also organized interactive informal exchanges to secure the views of the wider UN membership;Footnote ²²⁷ although such a practice mixes efforts to enhance consultation and engagement (a valid, but separate, matter aimed at securing proactive input) with those aimed at securing accountability through self-reflection and retrospective analysis. Presumably aware of these concerns, the Council announced in December 2015 that it will switch to a January to December reporting period starting in 2017, with this change in working methods accomplished as per usual practice by the issuance of a presidential note.Footnote ²²⁸

Articles 15(1) and 24(3) of the UN Charter serve as the means to oblige the Council to come forward with an account for its conduct, while informal briefings and press conferences, as well as voluntary audits and periods of self-reflection, may serve as informal opportunities to present additional, and possibly partial, incomplete or evolving, accounts. Wrap-up sessions and monthly summaries, both public and private, may also serve as occasions to provide an account, particularly if interactive. They also serve to enhance transparency through the provision of information, including analytical assessments of Council activity. However, it is the formality of the annual report obligation that has particular value since it mandates an opportunity for the Assembly to receive and scrutinize, and to provide feedback, should it choose to do so. Indeed, the Council has encouraged its members to ‘report back … relevant suggestions and observations raised during the General Assembly debate on the annual report’.Footnote ²²⁹ It is also possible that the Assembly's ‘consideration’ of the report through an annual debate may also entail consequences for the Council if, for example, the criticisms from Assembly members lead to or exacerbate divisions between Council members, especially permanent members.

D. Conflict Prevention

The last principle worth highlighting within the context of a call for a principled approach to support and sustain working methods reform is the principle of prevention. Given its primary responsibility for the maintenance of international peace and security, the Security Council clearly has a role to play in the prevention of armed conflict. However, much of its work has focused on crises and emergencies where violence has erupted, leading to renewed calls for a shift from a culture of reaction to a proactive culture of prevention in 2014.Footnote ²³⁰ Such calls echo the efforts of Kofi Annan during his tenure as UN Secretary-General.Footnote ²³¹ Prevention is both a goal and a potential organizing principle for developing more forward-looking working methods for risk management. Back in 2001, Annan encouraged the Council to develop new mechanisms to discuss early prevention cases, while also initiating from his office a new practice of providing the Council with informal periodic briefings on potential threats to international peace and security.Footnote ²³² Annan also welcomed the resumption of Council missions as having important preventive effects.Footnote ²³³ In response, the Council adopted a resolution affirming the centrality of conflict prevention to its work,Footnote ²³⁴ only to repeat this exercise in 2014.Footnote ²³⁵

As with transparency, engagement and accountability, conflict prevention is a concept or term whereby an expansive approach to defining its scope risks diluting the clarity of its guidance.Footnote ²³⁶ For example, if peacekeeping operations are included, then much of what the Council does serves a preventive aim. Council members, however, ‘often view peacekeeping as a tool discrete from preventive action’,Footnote ²³⁷ although the latter remains a multifaceted concept, consisting of many interconnected elements, as well as operational, structural and systemic aspects. Operational prevention, for example, refers to tools used to prevent the outbreak of violent conflict, such as early warning mechanisms and preventive diplomacy efforts, while structural and systemic prevention refer to efforts aimed at addressing underlying socio-economic factors and global risks that can contribute to conflict.Footnote ²³⁸ Conflict prevention also requires the Council's efforts to work in tandem with the efforts of many others, with the Council having recognized that the ‘essential’ or ‘primary’ responsibility for conflict prevention rests on national governments.Footnote ²³⁹

Nevertheless, the relevance of the principle of prevention to the subject matter of the Council's working methods is gaining traction, as reflected in ACT's call of 2015 for the Council to focus more attention on the development of working methods to identify potential risks and take action at an early stage.Footnote ²⁴⁰ Some methods are already in place, with the Secretary-General using his first report on preventive diplomacy in 2011 to include an acknowledgement that the building of strong Council relationships with regional and subregional organizations and the Council's monthly luncheon with the Secretary-General can serve a preventive function.Footnote ²⁴¹ More, however, needs to be done, with the June 2015 report of the High-level Independent Panel on Peace Operations (HIPPO), chaired by former East Timor head of State José Ramos-Horta, recommending that the Council ‘seek to play an earlier role in addressing emerging conflicts’, while also noting that ‘interactive dialogues in informal formats and visits to turbulent areas’ are ‘important in addressing emerging threats’.Footnote ²⁴² However, in his response to the HIPPO report in September 2015, Secretary-General Ban acknowledged that the Council ‘has at times been hesitant to consider crises at an early stage’.Footnote ²⁴³

One working method of interest to a preventive approach is the provision of regular, forward-looking, briefings by senior UN officials to the Council on nascent situations of emerging concern. Such briefings have occurred in the past, including on a daily basis during a period in the 1990s, but they have not been successfully institutionalized within the Council as a result of political sensitivities. Nevertheless, several Council members have expressed interest in receiving informal and interactive (and thus closed and unrecorded) assessments from the Secretariat, and in particular, its Department of Political Affairs (DPA), on unfolding situations and potential risks of conflict, with the United Kingdom in recent years taking a lead role to institute what it termed ‘horizon scanning’ briefings.Footnote ²⁴⁴ The first such horizon scanning briefing took place in November 2010, during a UK Council presidency, but by 2012, and throughout 2013, support for the briefings had waned. It may well be the case that some States fear that their mention in a briefing may lead to their designation as a Council agenda item, while others dislike the role given to the DPA in identifying country-specific situations of emerging concern. Efforts since have tried to put aside the ‘horizon scanning’ label so as to focus instead on the provision of monthly ‘DPA briefings’ on thematic situations of emerging concern and on the use of the agenda item ‘Any other business’ to bring forward potential country-specific situations of concern.Footnote ²⁴⁵ There is also preventive potential in the Council's use of informal interactive dialogues to engage with countries at risk of conflict, albeit that such working methods do not advance the aims of transparency and wider interaction with the UN membership as a whole.