Chapter 6:   VOTING

Section 1:   Substantive decisions and the veto

 

Will the Iran Plan of Action “snapback” provision have a wider impact on the veto?

 

Upon the conclusion of the Joint Comprehensive Plan of Action (JCPOA) on 14 July 2015, and after the adoption six days later by the Security Council of resolution 2231 (2015), much attention has focused on the so-called “snapback” mechanism.  Paragraphs 11 and 12 of resolution 2231 (2015) provide that the Council:

 

“11.  Decides, acting under Article 41 of the Charter of the United Nations, that, within 30 days of receiving a notification by a JCPOA participant State of an issue that the JCPOA participant State believes constitutes significant non-performance of commitments under the JCPOA, it shall vote on a draft resolution to continue in effect the terminations in paragraph 7 (a) of this resolution, decides further that if, within 10 days of the notification referred to above, no Member of the Security Council has submitted such a draft resolution

for a vote, then the President of the Security Council shall submit such a draft resolution

and put it to a vote within 30 days of the notification referred to above . . . ;

 

"12. Decides, acting under Article 41 of the Charter of the United Nations, that, if the Security Council does not adopt a resolution under paragraph 11 to continue in effect the terminations in paragraph 7 (a), then effective midnight Greenwich Mean Time after the thirtieth day after the notification to the Security Council described in paragraph 11, all of the provisions of resolutions 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008),

and 1929 (2010) that have been terminated pursuant to paragraph 7 (a) shall apply in the same manner as they applied before the adoption of this resolution, and the measures contained in paragraphs 7, 8 and 16 to 20 of this resolution shall be terminated, unless the Security Council decides otherwise . . .”

 

This arrangement has been called “reversing the power of the veto” by some Council diplomats.  Should “significant non-performance” by Iran of its commitments under the JCPOA be reported by a JCPOA participant State, ordinarily a Council member might have put forward a proposal to reinstate the sanctions which had been lifted under the conditions set out in resolution 2231 (2015).  In such a case, one or more permanent members could veto the proposal, and the sanctions would remain inoperative.  But paragraphs 11 and 12 of resolution 2231 (2015) create the mirror image of such a scenario:  Should significant non-performance by Iran be reported, the draft proposal before the Council would be “to continue in effect the terminations” of the sanctions, a proposal which, if vetoed, would have the effect of reinstating the sanctions which previously had been lifted, which would then “apply in the same manner as they applied before the adoption of this resolution”. 

 

In effect, the difference is that under the first, hypothetical scenario, all five permanent members would have needed to agree for the sanctions to be reimposed, whereas under the actual scenario set out in resolution 2231 (2015), action by only one permanent member will be sufficient to reimpose the sanctions.

 

This point was emphasized by the representative of the United States at the meeting at which resolution 2231 (2015) was adopted.  She affirmed that

 

“if the United States or any other participant in the Plan of Action believes that Iran is violating its commitments, we can trigger a process in the Security Council that will reinstate the United Nations sanctions.”  (S/PV.7488)

 

A “mirror image” voting arrangement of this type is not without precedent in the Security Council’s practice.  Page 530 of the book describes some of the difficulties encountered by some of the Council’s sanctions committees which, by long-established practice, must reach their decisions by consensus.  The book then explains that in order to avoid paralysis on some issues, “in recent years, certain sanctions committees have sometimes employed a practice of ‘negative consensus’, whereby a decision is adopted automatically unless it is rejected by consensus, but this practice is not widespread.”

 

For the former United States Ambassador to the UN John R. Bolton, the resolution 2231 (2015) “snapback” provision “creates a harmful precedent that could be used to defeat the veto power of all five permanent members of the council, and especially the United States.”  In an op-ed article in the New York Times on 3 August 2015, Bolton in effect charges that the snapback procedure, which he writes was developed by President Obama in order “to prevent Russia or China from casting vetoes that block snapback”, creates a precedent for such a procedure to be used in later instances to prevent the United States from casting a veto.

 

This charge can be assessed on the basis of the UN Charter.  As will be seen in the case of resolution 2231 (2015), the snapback mechanism was not agreed in isolation, but as part of a substantive draft resolution.  Therefore, the agreement of all five permanent members to institute the mechanism was required, since pursuant to Article 27(3) of the Charter, any one of them could have blocked it by a veto.  It is almost certain that should any Council member decide in the future to include a provision similar to the snapback mechanism in a draft proposal, that resolution will also be substantive and therefore again require the acquiescence of all five permanent members, any one of which could stop it by a negative vote. 

 

In the highly unlikely case that a “snapback" mechanism were proposed in a purely procedural draft resolution, to which the veto would not apply, if the wording of the resolution in any way diminished the veto power accorded to the permanent members under Article 27(3) of the Charter, even if the resolution attained sufficient votes it would not be implementable.  That is because under Article 108 of the Charter, the Security Council has no power to amend the Charter.  This must be done by a two-thirds vote in the General Assembly, followed by ratification by two thirds of the UN Member States, “including all the permanent members of the Security Council”.

 

Therefore, the “snapback” precedent created by resolution 2231 (2015) cannot be seen, either by proponents or critics of the veto, as having weakened the veto power of the permanent members.