The penholder system and the rule of law in the Security Council decision-making: Setback or improvement?

Abstract

AbstractThis article analyses the decision-making process of the UN Security Council when it adopts outcome documents, such as resolutions, Presidential statements and press statements. It is commonly assumed that because of their veto power and permanency China, France, Russia, the United Kingdom, and the United States have greater influence than their elected counterparts in shaping those outcomes. In recent years, that control has been strengthened by the penholdership system. Under this practice, one or more members, usually France, the United States or the United Kingdom (P3), take leadership over a situation on the agenda of the Council. When ‘holding the pen’ a member often decides what action the Council should take, then drafts an outcome document that it negotiates with other permanent members before sharing the text with elected members. This article explores the development of this practice and its impact on the respect for the rule of law in the Security Council’s decision-making process. It argues that, while concentrating power in the hands of the P3, hence diminishing transparency and the opportunity for all members to participate in the decision-making of the Council, at the same time the penholdership system also provides an avenue to strengthen elected members’ influence in ways that promote respect for the international rule of law.