Chapter 6:   VOTING

Section 1:   Substantive decisions and the veto

 

Action initiated by three European countries on Iran’s nuclear programme brings attention back to resolution 2231’s “snapback mechanism”

 

On 14 January 2020, France, Germany and the United Kingdom issued a joint statement in response to Iran’s decision to lift the last of the operational restrictions, under the Joint Comprehensive Plan of Action (JCPOA), on its nuclear programme including enrichment and enrichment-related matters.  The joint statement said that in consequence, these three European parties to the JPCOA were

 

“left with no choice . . . but to register today our concerns that Iran is not meeting its commitments under the JCPOA and to refer this matter to the Joint Commission under the Dispute Resolution Mechanism, as set out in paragraph 36 of the JCPOA.”

 

Paragraph 36 sets out the option for any party to the JCPOA, if it believes that any other party is not meeting its commitments, to “refer the issue to the Joint Commission for resolution”, which “would have 15 days to resolve the issue, unless the time period was extended by consensus”.[1]  Other sequential steps are also provided for.  In the event that none of these are conclusive, paragraph 36 provides

 

“If the issue still has not been resolved to the satisfaction of the complaining participant, and if the complaining participant deems the issue to constitute significant non-performance, then that participant could treat the unresolved issue as grounds to cease performing its commitments under this JCPOA in whole or in part and/or notify the UN Security Council that it believes the issue constitutes significant non-performance.”  (our emphasis)

 

While it has been widely reported that France, Germany and the United Kingdom took their action in fact to try to preserve the Iran agreement, paragraph 36 raises the possibility, albeit seemingly distant at present, that the three States, either singly or jointly, might make such notification to the Security Council.  This, in turn, would open the way to a Council vote under the novel “snapback mechanism” provided for in Security Council resolution 2231 (2015).

 

This “snapback mechanism” is set out in paragraphs 11 and 12 of the resolution, by which 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 . . .”  (our bold italics)

 

This unique voting procedure has been called “reversing the power of the veto” by some Council diplomats.  This is why:

 

Should “significant non-performance” by Iran of its commitments under the JCPOA be reported to the Security Council by a JCPOA participant State, ordinarily it might be expected that a Council member would 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 to reinstate the sanctions, and they would remain terminated. 

 

However, the wording specified in paragraphs 11 and 12 of resolution 2231 (2015) creates the mirror image of such a proposal.  The draft resolution actually put to a vote would be “to continue in effect the terminations” of the sanctions.  Should this draft be vetoed, it would result in reinstating the sanctions which previously had been lifted. 

 

In effect, the difference is that under the first, hypothetical scenario, all five permanent members would need to vote in favour, or abstain, for the sanctions to be re-imposed.  Under the actual scenario set out in resolution 2231 (2015), a negative vote by a minimum of 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)

 

The focus of those drafting resolution 2231 (2015) and of later commentators was primarily on the impact of the potential votes by the Council's permanent members, since each of them (together with Germany) is a "participant State" to the JCPOA and was thought to be most vested in the issue of Iran's compliance.  However, it is important to note that under paragraph 12 of the resolution, the "snapback" of the sanctions would occur also in the event that a draft resolution failed to be adopted owing to insufficient votes, thus also giving importance to the role of the Council's elected members.

 

A “mirror image” voting arrangement of this type is not without precedent in Security Council practice.  The book (page 530) describes difficulties encountered by some of the Council’s sanctions committees which, by long-established practice, must reach their decisions by consensus.  In this context, the book 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.”

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Two side questions are of interest in the context of a possible vote in the Security Council on reinstating the Iran sanctions.  The first relates to whether or not the United States could initiate the process.  On 16 January, the New York Times reported that John Bolton, President Trump’s former National Security Adviser, has argued that the United States can request the vote provided for in paragraph 11 of resolution 2231 (2015).  The Times adds, however, that the “Europeans disagree,” on grounds that paragraph 11 stipulates that such a vote would be triggered by “notification by a JCPOA participant State” and that the United States, having withdrawn from the JCPOA as of May 2018, no longer has standing as a “participant State”.

 

The second question relates to what the Security Council would decide in terms of a subsidiary body should the sanctions against Iran be re-imposed.  Prior to the termination effected by resolution 2231 (2015), management of the Iran sanctions regime was handled by the Council’s Committee established pursuant to resolution 1737 (2006), assisted by a Panel of Experts.  After adoption of JCPOA resolution, matters relating to it have been handled by the “Facilitator for the implementation of Security Council resolution 2231 (2015)”.[2]  Resolution 2231 (2015) does not explicitly address the matter.  However, its paragraph 12 does state that in the event that a Council vote ends the termination of the sanctions,

 

“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”.  (our italics)

 

This presumably would include re-establishment of the Committee established pursuant to resolution 1737 (2006), and the likely reconstitution of a Panel of Experts.

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UPDATE:  In late January 2020, the time limit for Joint Commission consideration of the referral by France, Germany and the United Kingdom was extended without a specific deadline.

 

(This update supplements pages 296-316.)

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[1]  Later, upon the initiative of the European participants, the timeline was indefinitely extended so as to allow the opportunity for resolving the issues raised by Iran's actions.

[2]  A related article on this website gives details about how the position of Facilitator was created and how it functions.