Chapter 5:   CONDUCT OF MEETINGS AND PARTICIPATION

Section 6:   Motions, proposals and suggestions

 

Draft resolution on Israeli settlements brought to a vote under Rule 35(2)

 

Until December 2016, no case had arisen in the history of the Security Council involving the second paragraph of Rule 35 of the Council’s Provisional Rules of Procedure.  Rule 35, in its entirety, reads as follows:

 

“A motion or draft resolution can at any time be withdrawn so long as no vote has been taken with

respect to it.

 

“If the motion or draft resolution has been seconded, the representative on the Security Council who

has seconded it may require that it be put to the vote as his motion or draft resolution with the same

right of precedence as if the original mover had not withdrawn it.”

 

On 21 December 2016, the representative of Egypt put a draft resolution on Israeli settlements “into blue” – that is, requested the Secretariat to prepare a final text of the draft in readiness for its being put to an imminent vote.  However, Egypt subsequently decided not to proceed to the vote the following day.  Then on 23 December, the Egyptian representative wrote to the Council President (Spain) and, citing Rule 35, requested that the President and the Secretariat withdraw the draft resolution.  In his letter, the representative stated

 

“As the author of the text, Egypt has the right to choose the appropriate timing to vote on its draft

resolution which has to be synchronized with the political efforts of the parties to achieve the goals

of the resolution.  No other delegation is in a position to provide deadlines or issue ultimatums for

the original author of the text on the best timing to put the text to vote.”

 

Following Egypt’s withdrawal of the draft, four other Council members which had become co-sponsors of the text – Malaysia, New Zealand, Senegal and Venezuela – acted under Rule 35(2) to request that the draft be put to a vote.  The representatives of Malaysia and Venezuela later noted that these four countries represented diverse regions of the world:  the Asia-Pacific Group, the Western European and Other States Group (WEOG), the Africa Group, and the Group of Latin American and Caribbean States.

 

The vote took place the afternoon of 23 December, the same day that Egypt had formally withdrawn the draft.  It was adopted as resolution 2334 (2016) by 14 votes in favour, and one abstention (the United States).[1]

 

Speaking at the adoption meeting (S/PV.7853), the representative of Egypt explained that his country had “felt compelled to withdraw its own draft resolution procedurally, in light of the manoeuvres, encountered since the text was presented in blue, that amounted to a warning from some members of the Security Council”.  He stressed that “the peace process, with its complexities and details, requires all of us to be wise and politically realistic in taking up this issue without manoeuvring on the part of any party . . . particularly on the issue of settlements, which is directly linked to one of the most important components of the final peace settlement – borders.”

 

One Council member that questioned the way in which the draft resolution was brought to a vote was the Russian Federation.  Its representative said that “like many others in the Chamber,” his delegation “was puzzled by the process that unfolded around today’s resolution 2334 (2016).  While the resolution has been worked on for many months, the apparent haste surrounding its adoption does not promote its ends.”

 

In their statements, the four co-sponsors who brought the draft to a vote acknowledged the role played by Egypt, together with the League of Arab States, over the previous months in preparing the resolution.  In addition, some of them addressed their decision to carry the draft forward.  The Malaysian representative stated, “We realize that some Council members may have legitimate concerns as to the short period of time in which the draft was officially circulated, put into blue and submitted for adoption.  In normal and ideal circumstances, we, too would have preferred a more transparent and inclusive process.”  He added, however, that “Exceptional circumstances require bold action and exceptional measures.”  Particularly in light of the “unprecedented attempt of the Israeli Parliament to legalize outposts on private Palestinian lands”, he stressed that it was “urgent for the Council to seize the opportunity for effective Council action without any further delay.”

 

The representative of New Zealand explained that because the pressing issue of settlements was “threatening the viability of the two-State solution”, his delegation joined the group calling for a vote on the draft in order “to ensure that the Council had a chance to consider it.”  The Venezuelan representative credited New Zealand as being “the driving force that enabled this draft resolution to be submitted before the end of the year.”

 

Two other Council members, Angola and Spain, as well as the observer of Palestine, specifically thanked the co-sponsors for presenting the resolution to the Council.  The representative of the United States noted that new legislation advancing in the Israeli Knesset which would legalize most settler outposts was “a factor that propelled the decision of the resolution’s sponsors to bring it before the Council.” 

 

It is clear that political events outside the United Nations influenced the scenario that played out in the Security Council regarding the draft resolution.  In particular, for many among the wider UN membership, the upcoming inauguration of President-elect Trump the following month created a sense of “now or never”.  Many also believed that as the change in United States administrations drew closer, the possibility increased that outgoing President Obama might wish to take a significant step regarding the Middle East before leaving office. 

 

The day following adoption of resolution 2334 (2016), a spokesman for Egypt’s Foreign Ministry explained that the decision to withdraw the draft stemmed from fear that the United States would cast a veto, especially after President-elect Trump declared that he would pressure the Obama administration to do so.  “In light of the continued possibilities that the motion would be vetoed, . . . Egypt decided to withdraw the draft motion to give more time to make sure” that the resolution would not be blocked in this way.  News sources, citing the spokesman, reported that Egypt intended to use the time gained to conduct further meetings with the Arab League to continue working on the wording of the draft.  MENA quoted the spokesman as saying that Egypt might have put a revised draft to the vote as quickly as 24 hours later.

 

Another factor – underscored by both the spokesman and Egypt’s UN representative – was that Egypt wanted to avoid taking any action at the United Nations that might undercut its central role in negotiations relating to the Palestinian cause, and its prospective role vis-a-vis the incoming Trump administration and the region. 

 

The decision of the four co-sponsors to exercise their right under Rule 35(2) to bring the draft to a vote appeared justified by the 14-0-1 adoption of resolution 2334 (2016), which clearly demonstrated that there was broad support among all Council members for a resolution of that nature at that time.  As pointed out by France, New Zealand, Spain, the United Kingdom, and Uruguay, it had been almost eight years since the Council had adopted a resolution on Israel-Palestine issues.  Moreover, in reference to resolution 465 (1980), the representative of Malaysia underscored that “The last time the Council adopted a resolution on settlements was more than 36 years ago.”  

 

Nonetheless, this first ever exercise of Rule 35(2) left some discomfort over the political aspects of the procedure.  That was the case even though the situation surrounding resolution 2334 (2016) appears, from the 1946 records, to have been exactly the type of scenario envisaged by the Council when it adopted Rule 35(2).  One element of discomfort was that using the Rule 35(2) process in this instance created a departure from the longstanding convention that draft resolutions on Palestinian issues, regardless of their original provenance, have been submitted and brought to a vote by the member holding the Arab “swing seat” on the Security Council.[2] 

 

The fact that Rule 35(2) has never before been utilized could indicate that a case lending itself to such a procedure simply did not arise previously.  But it could also indicate that historically there has been reluctance among Council members to interfere with another Council member’s “ownership” of a draft resolution which it has prepared.  In the case of resolution 2334 (2016), there was some question as to whether the co-sponsors requesting the vote should have sought to make at least nominal changes to the draft to mitigate, if only symbolically, the act of sidestepping Egypt’s original ownership.  However, the fact that the draft resolution was the product of detailed negotiations over a span of time, and involving multiple States and parties, made it hard to tamper with the text to make even minor changes.[3]

 

One outcome of the adoption of resolution 2334 (2016) is that it complicates Israel’s first ever bid for a Security Council seat in the forthcoming 2018 elections.  Based on statements by the Israeli Government, it is unlikely that the country will implement paragraph 2 of the resolution, which reiterates the Council’s demand that Israel “immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem”.  Such non-compliance with a recently adopted Council resolution, on which the Secretary-General will be reporting on a quarterly basis, will be likely to diminish support for Israel’s Security Council candidacy.  This in turn increases the probability that the WEOG seats up for election in 2018 will instead go to the two other candidate countries, Belgium and Germany.

 

Because the use of Rule 35(2) in connection with resolution 2334 (2016) revolved around a unique fact situation, it remains to be seen whether the procedure will fall back into abeyance, or be used again in the future.  In any eventual cases, it will be of interest to see whether co-sponsors which move to take ownership of a penholder’s draft will submit the original text as is, or decide to make at least nominal changes. 

 

In any event, the case of resolution 2234 (2016) is likely to have a subtle impact on other penholding situations.  One can imagine that from now on, a penholder growing reluctant to bring its draft resolution to a vote will be “looking over its shoulder” at the possible intentions of any co-sponsor(s).

 

(This update supplements pages 330-331 and 359-361 of the book.)

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[1] For a detailed summary of the process leading up to the vote on resolution 2234 (2016), see “In Hindsight:  Resolution on Israeli Settlements”, pages 3-4 in Security Council Report’s February 2017 Monthly Forecast.

 

[2] On page 127, the book explains that “since 1968 there has been an informal understanding between the African and Asian Groups that there will always be one State representing the Arab Group on the Security Council.  Under that arrangement, a candidate country belonging to the Arab Group is put forward alternately, every two years, by the Asian Group and then by the African Group.”

 

[3] The question of a Council member resubmitting a draft resolution originally submitted by another Council member arose in 1950 in a different type of situation.  After a draft resolution failed to be adopted, one Council member indicated that it wished to change its vote from negative to affirmative, leading some Council members to propose submitting the draft to a second voting process.  In the subsequent discussion of the available options, it was felt by some members that if the original draft resolution was reintroduced by another Council member, some revisions, however minor, should be made in order that the new draft differ at least slightly from the earlier version.  In the end, the identical draft was resubmitted, and this time was adopted (see pages 355-357 and 361-363 of the book).