Chapter 8:   SUBSIDIARY BODIES

Section 5:   Subsidiary bodies concerned with the maintenance of international peace and security

 

Security Council establishes a mechanism for tasks related to the Iran JCPOA

 

In a Note by the President dated 16 January 2016 (S/2016/44), the Security Council “sets forth practical arrangements and procedures for the Security Council for carrying out tasks related to the implementation of resolution 2231 (2015), particularly with respect to the provisions specified in paragraphs 2 to 7 of annex B to that resolution.”  Resolution 2231 (2015), adopted on 20 July 2015, endorsed the Joint Comprehensive Plan of Action (JCPOA) relating to Iran’s nuclear programme. 

 

Earlier on 16 January, the Director General of the International Atomic Energy Agency (IAEA) submitted to the Security Council a report (S/2016/57) confirming that the IAEA “has verified that, as of 16 January 2016, the Islamic Republic of Iran has taken the actions specified in paragraphs 15.1 – 15.11 of annex V of the Joint Comprehensive Plan of Action.”  The date of the report’s submission constitutes “Implementation Day” under the terms of the JCPOA. 

 

In accordance with paragraph 18 of the JCPOA, the Security Council decided, in paragraph 7 of resolution 2231 (2015), that upon receipt of the IAEA confirmation report, “The provisions of resolutions 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008), 1929 (2010) and 2224 (2015) shall be terminated”, and that all States shall comply with the restrictions set out in Annex B of the JCPOA for the timespans indicated. 

 

Paragraph 7 of resolution 2231 (2015) is nuanced.  Pursuant to it, the seven enumerated Security Council resolutions were terminated in their entirety on Implementation Day, thereby ending the major oil and financial sanctions which the Council had initiated in 2006, and then periodically extended.  However, as set out in Annex B of the JCPOA, on Implementation Day restrictions simultaneously went into effect with respect to, inter alia, transfers and activities with respect to nuclear materials and technology, nuclear weapon delivery systems, and conventional weapons and related services.  Restrictions were also carried over by resolution 2231 (2015) with respect to assets of some listed individuals and entities.  These Annex B restrictions are to some extent the equivalent of sanctions or an arms embargo, and in fact some provisions of the resolution relating to them cite Article 41 of the UN Charter.

 

Although the Government of Iran had wanted the JCPOA to entail the complete termination of all sanctions against it, it accepted the imposition of the Annex B restrictions.  However, how these restrictions would be portrayed in the JCPOA and the Security Council resolution became a sensitive issue, and this sensitivity carried over to the practical arrangements for implementing the resolution.  Accordingly, some of these arrangements seem to be symbolic, designed at least in part to appear to distance the new measures from standard sanctions and arms embargoes.  For example, the new measures are referred to as “restrictions” rather than “sanctions”.  For the same reason, a committee was considered an unsuitable organizational arrangement, owing to the close association between sanctions regimes and the committees created by the Council to manage them.  As stated in the book on page 520, “It is now standard procedure . . . for the Council to establish a sanctions committee, as a subsidiary organ, for each sanctions regime it imposes.” 

 

Resolution 2231 (2015) merely stated in its paragraph 25 that the Council will “make the necessary practical arrangements to undertake directly tasks related to the implementation of this resolution, including those tasks specified in Annex B and the release of guidance”.   Although not explicitly decided in resolution 2231 (2015), at a meeting on 15 September 2015, the representative of the United States (which is the Council penholder for Iran non-proliferation issues) stated that when the IAEA confirmation report was received, “the Iran Sanctions Committee and its Panel of Experts will be dissolved” (S/PV.7522). 

 

It appears that at the time of the adoption of resolution 2231 (2015), the Council had not yet decided how it would manage the tasks attributed to it by the JCPOA and the resolution.  This was reflected by statements made by the representatives of two States which participated in the JCPOA negotiations, China and the United Kingdom.  At the meeting at which resolution 2231 (2015) was adopted, the representative of the United Kingdom stated that the Council would need to take “significant steps” to support the agreement’s implementation, and that in some areas, “that will involve novel working methods for the Council” (S/PV.7488).  The same representative stated two months later that “A Council mechanism will be needed to monitor the implementation of the restrictions in resolutions 2231 (2015), and we look forward to working together in the Council to set up that mechanism” (S/PV.7522).  In December 2015, the representative of China affirmed that “the Council should thoroughly prepare its mechanisms, procedures and tasks so as to exercise its authority and ensure the smooth implementation of the resolution” (S/PV.7583). 

 

The new mechanism established by the 16 January 2016 Note by the President is indeed a "novel" one, as augured by the United Kingdom representative.  Paragraph 3 of the Note states that the Council “shall select on an annual basis one member to serve as its facilitator for the functions specified in the present note.”  The position of Facilitator is also treated in a distinctive way by the parallel issuance on 16 January 2016 of a revision to the Note by the President setting out the bureaux of the Council’s subsidiary bodies (S/2016/2/Rev.1).  That revision creates two categories of positions:  The first section lists the Chairs and Vice-Chairs of all of the Council’s sanctions committees, counter-terrorism committees and working groups.  The second section indicates that,

 

“Pursuant to paragraph 3 of the note by the President of the Security Council dated 16 January 2016 (S/2016/44), and after consultations among the members of the Council, it was agreed to select the facilitator for the period ending 31 December 2016 as follows:

 

Implementation of Security Council resolution 2231 (2015)

Facilitator:

Román Oyarzun Marchesi (Spain)”

 

It should be noted that Ambassador Oyarzun Marchesi served as Chair of the former Sanctions Committee relating to Iran from the time Spain joined the Security Council in January 2015 until the termination of the Committee on Implementation Day.  (The termination of that Committee was not stipulated in the Note establishing the position of Facilitator, but only was reflected by the absence of the Committee from the revised list of bureaux.)  The revised list of bureaux makes an additional distinction when it states that the Council agrees to “select” the Facilitator, whereas the Note states that the Council has agreed to “elect” the committee and working group chairs. 

 

According to the Note establishing the position of Facilitator, he or she is to report to the Security Council every six months, whereas the Chair of the former Iran Sanctions Committee reported every three months.  And in addition to reporting orally at public meetings of the Council, the Facilitator is also to report in writing. 

 

Paragraph 4 of the Note provides that, “In normal circumstances, the Security Council shall convene informal meetings at the expert level to carry out the functions specified in the present note.”  Paragraph 7 provides that prior to the public release of relevant reports by the Secretary-General, “the Security Council shall meet informally, normally at the expert level, to review the findings and recommendations contained in the report.”  Since regular sanctions committees most often meet at the expert level, these two paragraphs suggest that the Facilitator mechanism may, in its collective aspect, frequently function in ways similar to such committees, while once again preserving a symbolic distinction.  It remains to be seen whether such informal meetings at the expert level will be presided over by the Facilitator, as the equivalent of a committee chair, or by the Council President. 

 

Paragraph 5 of the same Note replicates another procedure common to the Council’s sanctions committees when it states that “in normal circumstances, the Security Council shall seek to make decisions related to the functions specified in the present note by consensus and under a no-objection procedure”.  In the case of the Facilitator mechanism, this provision for decision-making is explicitly “without prejudice to the possibility of voting pursuant to the Security Council’s provisional rules of procedure”.  This latter provision does not affect the “snapback” mechanism for voting provided for in resolution 2231 (2015) in the case of a purported violation of the JCPOA, since the “snapback” mechanism is crafted to fall within the voting provisions of the Charter and the Council’s Provisional Rules of Procedure (see related article on this website).

 

The Note also asks the Secretary-General to appoint the Security Council Affairs Division (SCAD) of the UN Secretariat to serve as a “point of contact” and to support the Council and its Facilitator on these matters.  The responsibilities listed for SCAD in this connection are akin to the support provided by that Division to the Council’s sanctions committees.  In addition, the Note, echoing resolution 2231 (2015), requests that the Secretary-General report to the Council every six months on the implementation of the resolution.

 

The last section of the Note covers the arrangements for “Procurement channel approval” relating to activities which would otherwise be restricted pursuant to paragraph 2 of annex B of resolution 2231 (2015) and paragraph 6 of annex IV of the JCPOA.  For each proposal submitted by a Member State, the JCPOA Joint Commission will provide a recommendation to the Council.  Paragraph 8(d) of the Note states that, “After five working days following receipt by the Security Council of such a recommendation, that recommendation shall be deemed to be approved by the Council unless the Council has adopted a resolution to reject it”.  This is the arrangement set out in paragraph 16 of resolution 2231 (2015).  Under paragraph 9 of the Note, any Council member may request a vote of the Council to reject a recommendation by the Joint Commission, and that the member “may also request an informal meeting of the Council to discuss the matter further”.

 

The Council’s designation of a single Council member to serve as a subsidiary organ in the person of the Facilitator is unique.  The Council has on other occasions requested the Secretary-General to appoint a single individual to assist the Council in carrying out its responsibilities, such as the Ombudsperson or the High-level Coordinator for compliance by Iraq with its obligations regarding the return of Kuwaiti and other nationals and property.   But such individuals have not been members of the Council.

 

On page 429, the book notes that, “Most commonly, the decisions set out in presidential notes are those adopted by the Council in connection with its procedures and working methods.”  Accordingly, by publishing the new implementation arrangements in the format of a Note, rather than as a resolution or presidential statement, the Council can be seen as underlining that pursuant to the JCPOA and resolution 2231 (2015), the substantive measures which went into effect on Implementation Day had been decided in resolution 2231 (2015) and were automatically triggered by the IAEA confirmation report, rather than requiring a new Council resolution.    

 

The Note does provide that the Security Council “shall take any necessary action to support and improve the implementation of resolution 2231 (2015) (emphasis added), including:

 

(a) Monitoring the implementation of the resolution;

 

(b) Taking action, as appropriate, to improve the implementation by Member States of the resolution;

 

(c) Answering enquiries from Member States and international organizations regarding the implementation of the resolution;

 

(d) Responding appropriately to information regarding alleged actions inconsistent with the resolution;

 

(e) Undertaking outreach activities to promote proper implementation of the resolution, including the provision of practical guidance;

 

(f) Reviewing and deciding on proposals made by Member States pursuant to paragraphs 2, 4, 5 and 6 (b) of annex B to the resolution, including the review of recommendations from the Joint Commission regarding proposals by Member States and international organizations to participate in or permit the activities set forth in paragraph 2 of annex B to the resolution and section 6 of annex IV to the Joint Comprehensive Plan of Action (i.e., the procurement channel functions);

 

(g) Granting exemptions to the restrictions, as specified in the resolution.”