"Double Veto” and the Fate of JCPOA Snapback MechanismHadi Khosroshahin
Double veto is a legal power under Article 109 of the United Nations Charter that has been frequently used in the Security Council since 1946.
The double veto that is a succession of two negative votes enables a permanent member of the UN Security Council to establish the non-procedural character of a given proposal by use of the veto and then veto the proposal itself. This power is often used when the permanent members of the Security Council strongly disagree on an issue and there is no possibility of a consensus.
The members who oppose the US triggering the snapback will propose a procedural resolution or a notification to the UNSC.
In the recent case about the US right to trigger the JCPOA snapback under UNSC Resolution 2231, there is a strong disagreement among the members and the possibility of a consensus is farfetched. Therefore, the members who oppose the US triggering the snapback will propose a procedural resolution or a notification to the UNSC.
Unlike substantive resolutions, procedural resolutions are defined under article 27 of the UN Charter and are passed by the majority of votes (9 votes) without considering the veto right, using Yalta voting formula; in substantive resolutions however the veto power is enabled.
So it is highly probable that the US opponents would at first propose a procedural resolution and the US will oppose it and claim that it is not a procedural resolution, but a substantive one. Then, America will propose a resolution to determine whether the previously proposal is substantive or procedural. After that, the US will veto its own proposed resolution, turning the procedural resolution proposed by the EU, Russia, and China, into a substantive resolution which can be vetoed by Washington.
The US and western states decided to limit the use of double veto by passing a resolution in the UN General Assembly and not the Security Council.
The double veto was used in cases of Spain in 1946, Greece in 1947, and Czechoslovakia in 1948, in which the Soviet prevented the Western counties from achieving their goals in the UNSC. However, in 1949, the US and western states decided to limit the use of double veto by passing a resolution in the UN General Assembly and not the Security Council.
The resolution called “The problem of voting in the Security Council” was about the procedural or substantive nature of questions and resolutions, listing in its annex 35 categories of decisions deemed procedural; anything other than those 35 categories were considered as non-procedural. Therefore, double veto could no longer be used in 35 categories.
Following the approval of the list, in August 1950 the attention of the Security Council was drawn to China's complaint against Taiwan over its armed aggression. China claimed that the United States was directly involved in the matter. The Ecuadorian representative drafted a resolution on the matter and the resolution was adopted as a procedural one. However, China objected and asked for a preliminary question as to whether the resolution was procedural or substantive.
Only China voted against it. And for the first time, despite the negative vote of China as a permanent member of the Security Council, the Council’s chairman refused to turn the resolution from a procedural one into a substantive one, relying on the General Assembly Resolution 237, the UN Charter, and the Four Powers Declaration. Of course, two powers, Russia and the United States, agreed with the head of the Council on the issue.
Russia also failed in a similar attempt in September 1959. On that date, the Laotian Foreign Minister objected to the Security Council about the military aggression of the Democratic Republic of Vietnam. France, Britain and the United States adopted a procedural resolution in this regard. But the Soviet’s representative argued that the resolution is substantive because there was no consensus among the permanent members of the Security Council. Therefore the then Chairman of the Security Council asked for a vote on a preliminary question: Is the resolution proposed by the three Western countries procedural or substantive?
The Soviet voted negative in order to use its double veto power. As it was the only member that voted negative, the UNSC Chairman did not give in to the Soviet’s interpretation, and thus declared the resolution a procedural one. As a result, the Soviet did not succeed in using its double veto power, unlike the case of Czechoslovakia in 1948.
If the Security Council's follows the same procedure as in 1940s, the United States by itself can use the double veto under Article 109 of the UN Charter.
Since then, the double veto power has been seldom used. In the 21st century, Russia legalized its military presence in Georgia, Ukraine and Syria through the double veto; but unlike the cases in 1940s and 1950s, in this case Russia enjoyed China’s agreement as well.
Russia and China, for example, used the same double veto on the draft resolution proposed by Western states on October 4, 2011. So if the Security Council's follows the same procedure as in 1940s, the United States by itself can use the double veto under Article 109 of the UN Charter. But considering the General Assembly Resolution 237, using the double veto would also need to be accompanied by a similar vote of a member of the Security Council (preferably a permanent member).
So, if another member of the UNSC votes in favor of the US, the head of the UNSC is obliged to turn the resolution from a procedural one into a substantive resolution and thus the snapback mechanism will be triggered.
That is why on the stage we see a beautiful legal system, but in the backstage, there is an ugly ongoing political battle among global giants.
It is not unlikely that Washington uses economic leverages to put unprecedented pressures on London, Paris, and even Beijing to make them cooperate with the US. It seems that the day after the US presents the notification to the Security Council, will be the beginning of a dark and tragic era for the global system: an era of fragmentation in the international system
Hadi Khosroshahin, a visiting researcher at the Tehran-based Center for Scientific Research and Middle East [West Asia] Strategic Studies.
This article was originally published in Sazandegi Newspaper.