Chapter 6:   VOTING

Section 5:   Voting on amendments

 

Procedure for voting on amendments at issue in context of 1 June 2018 meeting on Gaza

 

At a meeting held on 1 June 2018 (S/PV.8274), the Security Council members had before them a draft resolution prepared by Kuwait, on behalf of the Arab Group, relating to violence along the border between Gaza and Israel.  

 

The draft was first shared with Council members by Kuwait in mid-May, and extensive consultations on the text had taken place over the two weeks that followed.  In their statements during the meeting, a number of Council members – Bolivia, China, Ethiopia, Netherlands, Peru, Poland and Sweden – credited Kuwait for the transparent, inclusive and flexible negotiating process that it had carried out.  Nonetheless, at the point Kuwait was ready to put its draft to a vote, several Council members retained misgivings about it. 

 

A primary misgiving was that Hamas not referred to by name in the draft.  During the meeting, the representative of France stated that, “We would have liked [the Kuwaiti text] to clearly establish Hamas’ responsibility and condemn the rocket launches against Israel”.  The Ethiopian ambassador similarly affirmed that “we still felt it would have been appropriate to explicitly condemn recent actions by Hamas”, while the Polish representative maintained that “it is the responsibility of Hamas, Palestinian Islamic Jihad and other militant groups in Gaza to ensure that no protests are used to inspire violence”.  The United Kingdom representative faulted the draft for failing “to name terrorist actors, including Hamas and Palestinian Islamic Jihad”, and added that “its suggestion of an international protection mechanism risks raising unrealistic expectations”.  The Netherlands ambassador asserted that the Kuwaiti draft “did not fully reflect our concerns with regard to addressing the needs of all civilians nor the negative role of Palestinian militant groups in Gaza specifically, nor remaining questions on the international protection mechanism”. 

 

However, it was the United States which found most fault with the draft.  The American representative called it “a grossly one-sided view of what has taken place in Gaza in recent weeks”, and contended that it “sides with terrorists over Israel”, “places all the blame on Israel”, and “perpetuates the bias towards Israel that has long been the hallmark of the United Nations”.

 

The other Council members which voiced misgivings decided nonetheless either to vote in favour of the Kuwaiti draft (France) or to abstain (Ethiopia, Netherlands, Poland, United Kingdom).  The United States, however, expressed its objections by proposing 31 amendments to that text.

 

The American amendments would have significantly altered the orientation and contents of the Kuwaiti draft.  They included deleting six of the 14 preambular paragraphs, adding two preambular paragraphs, and changing the wording of five preambular paragraphs.  Only three paragraphs in the preamble would have been left unchanged.

 

Of the 17 operative paragraphs in the Kuwaiti draft, the United States proposed deleting eight and changing the wording of five, while also adding four new paragraphs.  Thus, of the operative paragraphs, only four would have been left unchanged, and of these, one was the pro forma final paragraph stating that the Security Council “Decides to remain seized of the matter.”  Were all of the United States amendments to be adopted, they would reduce the length of the Kuwaiti text in English from three pages to two.

 

The immediate issue raised by such significant amendments was how to proceed in voting upon them.  The first question to be resolved was whether such extensive changes in fact constituted “amendments”, or whether they were in essence an alternative draft resolution. 

 

As described in the book (page 330), “The distinction between an amendment and a ‘principal motion’ or draft resolution is an important one, because the application of procedural rules such as Rules 32, 33, or 36 can vary, depending on whether a proposal is considered to be one or the other.”  Notably, had the changes proposed by the United States been deemed to be amendments, under Rule 33 (which sets out the precedence of various motions), voting on those changes would have preceded voting on the Kuwaiti draft.  To the contrary, if the American proposals were considered to be a separate draft resolution, then that draft would be voted upon after the Kuwaiti draft.  This would be pursuant to Rule 32, which provides that “Principal motions and draft resolutions shall have precedence in the order of their submission.”

 

This was not a new issue for the Security Council.  The book notes that during the Council’s early decades, “What proved contentious” with respect to voting on amendments “were instances when a sponsor’s characterization of a proposal as an amendment was challenged by other Council members”, particularly when “it seemed that representatives tried to convert proposals into amendments in order to have them put to a vote, pursuant to Rule 33, before main proposals submitted earlier by other representatives.”

 

Among the earliest cases was one which occurred in 1946, when Egypt proposed what it called an amendment to a draft resolution.  The Council President (Australia) stated that he himself would not

 

“regard the proposal made by the representative of Egypt as being an amendment to the proposal submitted by the representative of the Ukraine.  To my mind, it bears the character rather of an independent substantive proposal.  In my opinion, it must be considered as an alternative method of dealing with the matter that is before the Security Council.  In substance, the Ukrainian proposal is for a commission of inquiry.  The Egyptian proposal does not contemplate such an inquiry.”

 

No Council member objected to the assessment made by the President, and the Egyptian proposal was subsequently voted upon as a separate draft resolution.

 

In the 2018 case, while both the Kuwaiti draft resolution and the changes proposed by the United States would request a report from the Secretary-General within 60 days, the two texts envisaged very different contents of that report.  The Kuwaiti draft specified that it should include

 

“proposals on ways and means for ensuring the safety, protection and well-being of the Palestinian civilian population under Israeli occupation, including, inter alia, recommendations regarding an international protection mechanism”. 

 

For its part, the United States stipulated that the Secretary-General should report “on terrorist organizations such as Hamas using protesters for incitement and carrying out other acts of violence in the past 90 days, with the goal of preventing such clashes in the future”.

 

Moreover, the Kuwaiti draft would have 1) demanded that Israel “fully abide by its legal obligations and responsibilities under the Fourth Geneva Convention”; 2) urged the “provision of immediate and unimpeded humanitarian assistance to the Palestinian civilian population in the Gaza Strip”; and 3) affirmed support for the two-State solution.  These three provisions were all absent from the United States proposed changes.

 

Another aspect of the American proposals that tilted them away from being considered amendments was the fact that the United States delegation first put them into blue and presented them to the other Council members as a package, to be considered in a single vote.  This led Council members to consult Rule 36, which states:

 

“If two or more amendments to a motion or draft resolution are proposed, the President shall rule on the order in which they are to be voted upon.  Ordinarily, the Security Council shall first vote on the amendment furthest removed in substance from the original proposal and then on the amendment next furthest removed until all amendments have been put to the vote, but when an amendment adds to or deletes from the text of a motion or draft resolution, that amendment shall be voted on first.”

 

Rule 36 provides no explicit basis for addressing the issue raised by the format in which the United States initially submitted its changes, that is, how many proposed alterations could still be considered a single “amendment”.  The wording of Rule 36 seems to suggest that each amendment should relate to a relatively limited, self-contained amount of text, in that it describes the basis upon which the Council President is to rule on the order of voting for two or more amendments.  As a practical matter, there would be no purpose for determining the “order” of a vote if the intended practice was to vote on more than one amendment as a package.[1] 

 

Over the Security Council’s long history, in only one previous case had multiple proposed changes been voted upon as a single “amendment”.  That case took place in 1947 (S/PV.194).  The Soviet delegate proposed deleting five paragraphs, and adding two paragraphs, to a Sino-Australian draft on the Indonesian question.  He explained, “My amendments concern only one question, that of supervising the implementation of the resolution [calling for a cessation of hostilities].”  The other Council members apparently accepted this reasoning as grounds for voting on all seven proposed changes together as a package.  These Soviet proposals, however, did not conform to the earlier standard, set out by the President in the 1946 case referred to above, for determining that a proposal was an amendment rather than a new draft resolution, in that the proposals, had they received the necessary number of votes, would have replaced the approach outlined in the Sino-Australian draft with a commission composed of all Security Council members.

 

Other than the 1947 case, when two or more amendments have been proposed, it has been the Council’s practice to vote on them separately.  The most immediate past precedent, described in the book on page 332, occurred in 1991, and also related to a large number of amendments.  With regard to a draft resolution on the Iraq-Kuwait situation, Cuba submitted 18 amendments. The President (Austria) read out Rule 36 and then told Council members the order in which he proposed voting individually on each of the amendments.  After no objections were raised, the President proceeded accordingly.[2] 

 

In the 1 June 2018 case, in consultations prior to the meeting and under pressure particularly from the Russian Federation (the Council President) and the United Kingdom, the United States agreed to input all its proposed amendments into the Kuwait draft resolution and then submit the entire amended text as a separate draft resolution.[3]

 

Once the United States converted its proposals into the format of a new draft resolution, Rule 33, governing the precedence for voting on amendments, no longer applied.  Instead, the American proposals now came under the voting order established by Rule 32 which, as noted above, provides that “Principal motions and draft resolutions shall have precedence in the order of their submission.”

 

The results of the voting on the two draft resolutions was as follows:

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The Kuwaiti text (S/2018/516) received 10 votes in favour (Bolivia, China, Côte d’Ivoire, Equatorial Guinea, France, Kazakhstan, Kuwait, Peru, Russian Federation, Sweden) and one against (United States), with four abstentions (Ethiopia, Netherlands, Poland, United Kingdom).  It failed to be adopted owing to the United States veto.

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The United States text (S/2018/520) received one vote in favour (United States) and three against (Bolivia, Kuwait, Russian Federation), with eleven abstentions (China, Côte d’Ivoire, Equatorial Guinea, Ethiopia, France, Kazakhstan, Netherlands, Peru, Poland, Sweden, United Kingdom).  It was not adopted, having failed to obtain the required number of votes.

 

In statements before or after the votes on the two draft resolutions, some Council members – including Ethiopia, France, Kazakhstan and Sweden – faulted the United States for having brought its text to a vote without prior negotiations.  This omission by the United States was somewhat understandable, given that it had not intended to submit its proposed changes in the format of a draft resolution until persuaded to do so shortly before the meeting convened.  However, given the amplitude of the American proposals, irrespective of their format, holding informal consultations to discuss them would have been in keeping with the spirit of paragraph 81 of the Note by the President, S/2017/507, which reads in part:

 

“the members of the Security Council encourage the penholder or co-penholders, as early as possible in the drafting exercise, to ensure the exchange of information among all Security Council members and to engage in timely consultations with all Council members with openness and flexibility.  For each draft resolution which is not a technical rollover or for each presidential statement, the members of the Security Council encourage the penholder or co-penholders to present and discuss the draft with all members of the Security Council in at least one round of informal consultations or informal-informals.” 

 

Given the statements by several Council members during the meeting, it is likely that some of the proposed American changes – if voted upon individually as separate amendments – would have been adopted, and consequently incorporated into the Kuwaiti draft.  The representative of Peru, for example, stated that his country “agrees with some of the proposals the United States included in its draft resolution”.  The Swedish representative similarly affirmed that his delegation was “sympathetic to many aspects of the draft”, while the Netherlands welcomed the fact that the United States draft “condemns the role of Hamas”.  The Russian representative stated that “we would be ready to agree with some of its provisions”, particularly those recognizing Israel’s right to security. 

 

Yet it was virtually certain that other of the proposed amendments, voted on individually, would not be approved.  In such a scenario, the United States would still have been faced with a draft resolution unacceptable to it.

 

This situation would also have been problematic for Kuwait.  Any individual American amendment approved by a Council vote would have to be incorporated into the original Kuwaiti draft, even if Kuwait itself disagreed with it.  And if Kuwait had felt that it no longer wanted to bring its draft resolution, as changed, to a vote, it would have been prohibited from withdrawing the text.  Rule 35 provides that “A motion or draft resolution can at any time be withdrawn so long as no vote has been taken with respect to it.”  As noted in the book (page 330), a 1962 case established the precedent that the vote taken on an amendment to a draft resolution meant that a vote had “been taken with respect” to the draft resolution itself, and consequently it could no longer be withdrawn.   

 

It seems that the rationale for initially presenting the American amendments as a package was to put the proposed changes in a position to be voted upon first.  The 1 June 2018 meeting marked the second time in less than a year that the voting order of two competing draft resolutions on the Middle East became a significant issue.  As detailed in another article on this website, the earlier instance occurred on 17 November 2017, when the Russian Federation, in coordination with Bolivia, used Rule 35 to override the order set out in Rule 32 for voting on two parallel draft resolutions for an investigative mechanism with respect to the use of chemical weapons in Syria.  This suggests that the order of voting on two competing draft resolutions is seen by at least some Council members not merely as a matter of correct procedure, but also as having strategic importance.

 

(This update supplements pages 330-332 of the book.)

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[1] While unlikely, it could, however, be argued that the rule was primarily drafted to deal with cases involving the submission of amendments by more than one Council member.

[2] Each of the amendments, voted on in turn, failed to obtain the required number of votes. The draft resolution, as originally submitted, was then adopted.

[3] The document symbol (S/2018/520) assigned to the blue draft of the original package of United States amendments was carried over to the American draft resolution.