[Jean Galbraith is an Assistant Professor at the University of Pennsylvania Law School.]
The Security Council’s voting procedures make it difficult to pass resolutions – and, typically, difficult to undo resolutions once passed. In an article published not long after the end of the Cold War, David Caron observed that while it is hard to address the difficulty of passing resolutions, the Security Council itself has the power to make it easier for resolutions to be undone once passed. One way, of course, is for the Security Council to put specific time limits on a resolution. But as an alternative Professor Caron suggested that the Security Council could “incorporate in any resolution taking a decision a modified voting procedure for future use in terminating the action taken.” In this way, the Security Council could get around what he described as the “reverse veto” – the default position that a resolution needs another resolution to terminate it and therefore that all P5 members must acquiesce in this termination. Professor Caron described how he had run his idea by a lawyer serving at the mission of one of the P5 but gotten a “quick and dismissive” reaction.
In the Security Council resolution endorsing the Iran deal, we now have something resembling Professor Caron’s suggestion. To see this, one must work through multiple paragraphs of Resolution 2231. To begin with, paragraph 7(a) terminates prior Security Council resolutions imposing sanctions on Iran. But the Resolution further provides that paragraph 7(a) itself can be undone – thus reinstating the prior Security Council resolutions – through what is effectively a modified voting procedure. Specifically, paragraph 11 states that if the Security Council receives a complaint from one of the parties to the Iran deal alleging that there is “significant non-performance of commitments” under the deal, then the Security Council is to “vote on a draft resolution to continue in effect the terminations in paragraph 7(a) of this resolution.” According to paragraph 12, if this draft resolution does not pass, then after a short time lag all the resolutions that had “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.” (These “snapback” provisions track the arrangement reached in the Iran deal. Also consistent with that deal, there are further related issues, including that invocation of these provisions could lead Iran to abandon the deal and also a partial limit on the reinstatement of the earlier sanctions as noted earlier on this blog by Julian Ku.)
In other words, paragraphs 7, 8, and 16-20 of Resolution 2231 will automatically terminate if a single P5 member vetoes the draft resolution that follows a complaint submitted to the Security Council by one party to the deal. This flips the usual voting procedure for terminating a resolution. Rather than needing the acquiescence of all the P5 to terminate these provisions, what is now needed is only for one P5 member to block their continuance.
Going forward, the potential for these kinds of modified voting procedures is fascinating to consider. They could increase the likelihood of getting Security Council resolutions ex ante by making it easier for these resolutions to be terminated ex post. They could also reduce the likelihood of stretched interpretations of existing resolutions. For example, if Resolution 678 authorizing the first Gulf War had provided for its own termination through a modified voting procedure, it presumably would have been so terminated before it could have been used by the United States as an asserted legal justification for the second Gulf War. On the flip side, if such modified voting procedures become part of the practice, it is possible that they could be over-used in ways that undermine the effectiveness and stability of the Security Council. It will be very interesting to see whether these kinds of mechanisms get more use in the future.
As someone who studies U.S. constitutional law as well as international law, this issue brings to mind the U.S. constitutional issue of whether a congressional statute can delegate authority to the executive branch but provide that this authority can be terminated in the future through a mere majority vote of one house of Congress (or of both houses of Congress but without Presidential signature). The first instance of this practice that I know of occurred in the Lend-Lease Act and sparked a back-and-forth between President Franklin D. Roosevelt and Attorney General Robert Jackson over the constitutionality of this practice. Ultimately, a majority of the Supreme Court held in INS v. Chadha (1983) that Congress does not have the constitutional authority to develop modified voting procedures for terminating statutory delegations. Even since Chadha, however, the practice of Congress and the President has continued to make use of such procedures, albeit often in more informal ways. In addition, the United States uses modified voting procedures in other contexts, such as the practice-based approach of allowing the President alone (without needing two-thirds of the Senate) to withdraw the United States from treaties where this withdrawal is consistent with international law.
The U.N. Charter does not specify voting procedures for terminating an existing resolution (or other ways in which a resolution might terminate of its own accord). In practice, moreover, the Security Council has long had some flexibility in interpreting its procedures under the U.N. Charter, as demonstrated by its practice of concluding that a resolution can pass with abstentions rather than affirmative votes from P5 members. To me, as to Professor Caron in his article, it seems fairly straightforward that the Security Council has the power to use a modified voting procedure as a condition for the termination of a resolution, just as it can use a fixed termination date. Resolution 2231 is an example of how such modified voting procedures for termination can be useful, and the practice may become more common in the future.
In closing, I thank Opinio Juris for letting me contribute this guest blog post.