Posted on 16 August 2020
Chapter 6: VOTING
Section 3: Procedural matters and the 'double veto'
Eight points on ‘preliminary question’ or ‘double veto’ in context of Iran snapback mechanism
There is presently widespread discussion on social media about the so-called ‘double veto’ and how it might impact on an attempt by the United States to initiate the snapback mechanism set out in resolution 2231 (2015) to reimpose sanctions against Iran. Because this discussion has included some misunderstandings, SCProcedure has tweeted some clarifications, which are also set out here (in expanded form):
1) It needs to be kept clear, when talking about ‘procedure’, whether the reference is to regular Security Council procedure as established by the Provisional Rules of Procedure and practice, or procedure stemming from resolution 2231 (2015). They are two very different things.
2) The informal term ‘double veto’ is a partial misnomer and creates misunderstandings. The accurate term is ‘preliminary question’.
3) ‘Preliminary’ is not chronological but legalistic. It means that in order to correctly interpret the results of a vote on a draft proposal (that is, whether a negative vote by a permanent member constitutes a veto), the ‘preliminary question’ must be settled as to whether the proposal being voted upon concerns a procedural or substantive matter.
4) In all cases of voting on resolutions since 1959, there has been implicit agreement on the ‘preliminary question’ and therefore there has been no need to resolve it explicitly.
5) However, if in the Iran snapback context it does become necessary to establish whether or not a veto will apply to a specific draft resolution, then the ‘preliminary question’ must be explicitly dealt with. By practice, this can occur before or after the vote on a draft resolution. In some past cases, Council members have wished to resolve the ‘preliminary question’ at the outset so that, depending on the results, the determination might influence their vote on the draft resolution. In other cases, members have waited to raise the ‘preliminary question’ until after a vote, because it might turn out that no permanent member casts a negative vote, in which case explicitly resolving the ‘preliminary question’ will become unnecessary.
6) It is firmly established that the ‘preliminary question’, if put to a vote, is itself a substantive question and therefore the negative vote of permanent member will constitute a veto.
7) The only case when a ‘double veto’ occurs is when a permanent member vetoes a proposal to consider a draft resolution procedural – in which case it must be considered substantive – and then on that basis proceeds to veto the draft itself.
8) The ‘preliminary question’ or ‘double veto’ never applies to a vote pursuant to Rule 9 to adopt the agenda for a meeting (absent which the meeting cannot go forward). Adoption of the agenda has, from the outset of Security Council practice, been without exception acknowledged to be a purely procedural matter.
In specific applicability to the snapback issue, this means that if a Security Council member tables a draft resolution by which the Council would decide that the United States lacks standing to initiate the snapback mechanism and presents that draft as procedural (thus not subject to veto), the United States can a) challenge the contention that the draft is procedural, b) veto a vote that would say that it is procedural, and then c) veto the draft itself. But the snapback mechanism involves a lot more.
For further background on the 'preliminary question' or 'double veto', we are making available here pages 318 to 327 of our book (copyrighted).
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