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Published online by Cambridge University Press: 20 January 2017
Criticism of the Security Council tends to take one of two forms: first, that it does not act enough; and second, that it acts unwisely. Although these concerns are quite different, they both have partial causal roots in the Council’s voting process. Article 27 of the United Nations Charter provides that Council decisions on nonprocedural matters require “an affirmative vote of nine members including the concurring votes of the permanent members.” The ability of any of the five permanent member stove to a Council resolution makes it difficult for the Council both to act in the first place and to pass corrective resolutions when existing resolutions are criticized as problematic. Indeed, the difficulty of undoing resolutions can make Council members wary about allowing the passage of resolutions at the very outset.
1 Un Charter, Art. 27 (as amended Aug. 31, 1965) (further providing that “in decisions under Chapter VI, and under paragraph 3of Article 52, a party to a dispute shall abstain from voting”). Security Council practice establishes that a resolution passes for the purposes of Article 27 if it has at least nine affirmative votes and no vetoes, even if one or more permanent members abstain from voting. See, e.g., Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ 16, 22 (June 21).
2 See SC Res. 2231, paras. 11–12 (July 20, 2015).
3 Caron, David D., The Legitimacy of the Collective Authority of the Security Council, 87 AJIL 552, 584–88 (1993)CrossRefGoogle Scholar; see also infra note 31 and accompanying text (discussing differences between Caron’s proposal and the approach taken in Resolution 2231).
4 See infra notes 15–17 and accompanying text.
5 SC Res. 2231, supra note 2, paras. 11–12.
6 By sunset provisions, I mean provisions that limit an operative part of a Council resolution to a particular period of time. See, e.g., Scres. 1343, paras.9–10 (Mar. 7, 2001) (setting certain sanctions but subject to a one-year limit); Sc Res. 954, para. 1 (Nov. 4, 1994) (extending a Un mission in Somalia until a specified date).
7 See Joint Comprehensive Plan of Action, para. 37 (July 14, 2015) [hereinafter Jcpoa], at http://www.state.gov/documents/organization/245317.pdf (describing the trigger termination that would come to be adopted in Resolution 2231). In describing the Jcpoa and Resolution 2231, this Comment focuses only on aspects relevant to the issue of trigger terminations and not on their many other complexities.
8 See SC Res. 1696 (July 31, 2006); SC res. 1737 (Dec. 23, 2006); Scres. 1747 (Mar. 24, 2007); Scres. 1803 (Mar. 3, 2008); SC Res. 1835 (Sept. 27, 2008); SC Res. 1929 (June 9, 2010).
9 See JCPOA, supra note 7, pmbl.
10 Id., paras. 36–37. This trigger termination is available for the ten years following the adoption of Resolution 2231. After ten years, Resolution 2231 automatically expires pursuant to a separate sunset provision (provided that the trigger termination has not been invoked in the meantime). If Resolution 2231 expires pursuant to the ten-year sunset provision, then the prior resolutions remain terminated. See SC Res. 2231, supra note 2, paras. 8–9.
11 SC Res. 2231, supra note 2, para. 7. This paragraph is itself akin to a trigger termination in providing for termination to occur upon the receipt of the International Atomic Energy Agency report—although at issue in this paragraph is the termination of prior resolutions rather than of Resolution 2231.
12 Id., paras. 11–12. The JCPOA further provides that before notifying the Council of perceived significant non-compliance, the JCPOA country should invoke the dispute resolution procedure set forth within the JCPOA—a procedure that is to take no more than 35 days unless extended by consensus. See JCPOA, supra note 7, para. 36. In practice, this step results in a minimum of a 65-day window between a JCPOA country’s initial invocation of the JCPOA complaint procedure and the taking effect of the trigger termination. For purposes of this Comment, how ever, I focus only on the 30-day time period specified in Resolution 2231.
13 The language of the JCPOA envisions a trigger termination that any JCPOA “participant” could activate. JCPOA, supra note 7, paras. 36–37. It is unclear why Resolution 2231 limits this authority to any “JCPOA participant State.” Perhaps it reflects political or legal concerns about treating the European Union like a state, or perhaps it reflects a practical reality; France, Germany, and the United Kingdom can each activate the trigger, which means that the likely universe under which the European Union would want to activate the trigger is already covered.
14 SC Res. 2231, supra note 2, para. 12. The reinstatement of the prior resolutions is subject to some additional qualifications. See id., paras. 14–15. In addition, if the state that submitted the notification withdraws it before the 30 days are up, the trigger does not activate. See id., para. 13.
15 See Statement by the President on Iran (July 14, 2015), at https://www.whitehouse.gov/the-press-office/2015/07/14/statement-president-iran (Barack Obama stating that the Security Council resolution memorializing the JCPOA would provide that “if Iran violates the deal, all of these sanctions will snap back into place”).
16 As I discuss further in part Iii, Council resolutions can, of course, delegate powers other than the power to terminate. Some such powers have similarities to the power to terminate allor part of a resolution, such as the power to suspend sanctions or the power to terminate sanctions against particular actors. See, e.g., SC Res. 943, paras. 1(c), 4 (Sept. 23, 1994) (providing that certain sanctions will be suspended for 100 days if the co-chairmen of the Steering Committee of the International Conference of the Former Yugoslavia make certain certifications and further providing that this suspension itself can be lifted in five days if the secretary-general makes certain findings); SC Res. 1989, paras. 23, 27 (June 17, 2011) (providing a process by which, in the absence of objections from a state on the sanctioning committee, particular subjects of sanctions can be delisted upon the recommendation either of the state that designated that subject in the first place or of the ombudsperson).
17 SC Res. 1267, para. 14 (Oct. 15, 1999). One might read this language simply as a statement of future intent on the part of the Security Council to act, but its use of the operative term “decides” strongly suggests a trigger termination. Subsequent resolutions have changed and supplemented these sanctions in a complicated manner that is beyond the scope of this Comment to discuss, and in any event the death of Osama bin Laden has rendered it impossible for the Taliban to hand him over.
18 SC Res. 1021, para. 1 (Nov. 22, 1995); see also id., para. 2 (requesting the secretary-general to be timely in making his report). These provisions differ somewhat from the other trigger terminations discussed herein that they refer to the termination of aspects of a prior resolution. In that respect, they are more like paragraph 7 of Resolution 2231, which, as noted earlier, activates a trigger termination of prior resolutions once the Council receives a report from the director general of the International Atomic Energy Agency. See supra note 11.
19 Helfer, Laurence R., Flexibility in International Agreements, in Interdisciplinary Perspectives on International Law and International Relations: the State of the Art 175, 175 (Dunoff, Jeffrey & Pollack, Mark A. eds., 2012)CrossRefGoogle Scholar; see also, e.g., Helfer, Laurence R., Exiting Treaties, 91 Va. L. Rev. 1579, 1599–1601 (2005)Google Scholar; Bilder, Richard B., Managing the Risks of International Agreements 52–55 (1981)Google Scholar. Treaty withdrawal clauses typically give each state only the right to withdraw itself from a treaty rather than the right to end the entire treaty. Their practical implications thus differ in important ways from those of trigger terminations, but at a high level of generality, they share risk-management implications.
20 E.g., An Act to Promote the Defense of the United States, Pub. L. 77–11, 55 Stat. 31 (1941) (the Lend-Lease Act) (giving the President authority to sell, lend, or otherwise provide other countries with defense materials but providing that this authority would expire if Congress passed a concurrent resolution to that effect); see also Jackson, Robert H., A Presidential Legal Opinion, 66 Harv. L. Rev. 1354 (1953)CrossRefGoogle Scholar (discussing the legality of this provision). The Supreme Court held in 1983 that the use of such “legislative veto” mechanisms was unconstitutional, see Ins v. Chadha, 462 U.S. 919, 960 (1983), but Congress has nonetheless continued to use formal and informal mechanisms of this sort. Fisher, Louis, The Legislative Veto: Invalidated, It Survives, 56 Law & Contemp. Probs. 273, 288–91 (1993)CrossRefGoogle Scholar.
21 See Albert O. Hirschman, Exit, Voice, and Loyalty 1 (1970) (noting commonalities regarding such issues for “a wide variety of noneconomic organizations and situations”).
22 See, e.g., O’Neill, Barry, Power and Satisfaction in the Security Council, in The Once and Future Security Council 59, 79 (Russett, Bruce ed., 1997)Google Scholar (“[a] veto gives a state high voting power, no veto means a state has almost none”); Alvarez, Jose E., International Organizations as Lawmakers 199 (2005)Google Scholar.
23 Compare, e.g., Peters, Anne, The Responsibility to Protect and the Permanent Five, in Responsibility to Protect: From Principle to Practice 195, 203, 205 (Hoffman, Julia & Nollkaemper, André eds., 2012)Google Scholar (stating that “[m]embers of the Security Council act as delegates of all other Unmembers, and a strustees of the international community” (emphasis omitted), and suggesting that it would be “doctrinally consistent” to treat an “abusive veto. .. as an illegal act,” although state practice does not currently support such a stance).
24 See Caron, supra note 3, at 578–82 (discussing this issue and concluding that resolutions do not naturally expire in the absence of termination provisions or subsequent Council action); see also Öberg, Marko Divac, The Legal Effects of the United Nations Resolutions in the Kosovo Advisory Opinion, 105 AJIL 81, 86–87 (2011)CrossRefGoogle Scholar (considering these issues regarding resolutions related to Kosovo).
25 See Caron, supra note 3, at 556.
26 Joy Gordon, Invisible War and the Iraq Sanctions 43 (2010). As another example, the Iran deal itself was negotiated in the shadow of the reverse veto that the United States held with regard to the existing sanctions on Iran.
27 See Taft, William H. IV & Buchwald, Todd F., Preemption, Iraq, and International Law, 97 AJIL 557 (2003)Google Scholar.
28 See Oette, Lutz, A Decade of Sanctions Against Iraq: Never Again! The End of Unlimited Sanctions in the Recent Practice of the Security Council, 13 Eur. J. Int’l L. 93, 97 (2002)CrossRefGoogle Scholar. Some sunset provisions attempt to write in a partial standard for renewal, although the enforceability of these standards is unclear in practice. E.g., SC Res. 1343, supra note 6 (setting a one-year limit on sanctions and indicating that the Council’s future decision whether to extend them would take into account whether or not Liberia complied with the other terms of the resolution). It is possible, of course, to include both a trigger termination and a sunset provision, as is done in Resolution 2231. See supra note 10.
29 Although for convenience I focus on a choice between passing a resolution and not passing a resolution, trigger terminations could similarly have implications for a resolution’s content. The inclusion of a trigger termination might make an ambivalent P5 member accept stronger substantive provisions within a resolution than would otherwise be the case.
30 See Helfer, Flexibility in International Agreements, supra note 19, at 181 (observing that exit clauses in treaties can enable more participation in treaties and deeper substantive provisions by providing a “low-cost option for states to end treaty-based cooperation if an agreement turns out badly”); Fisher, supra note 20, at 274 (observing how by “attaching the safeguard of a legislative veto, Congress was willing to delegate greater discretion and authority to the executive branch”).
31 Caron, supra note 3, at 587; see also Galbraith, Jean, The Security Council Resolution on the Iran Deal: A Way Around the “Reverse Veto,” Opinio Juris (July 23, 2015)Google Scholar (noting the relationship between Caron’s argument and Resolution 2231).
32 See Voeten, Erik, Delegation and the Nature of Security Council Authority, in The UN Security Council and the Politics of International Authority 43, 51–54 (Cronin, Bruce & Hurd, Ian eds., 2008)Google Scholar (describing how the prospect of unilateral action can change bargaining dynamics within the Security Council).
33 See Ratner, Steven R., Precommitment Theory and International Law: Starting a Conversation, 81 Tex. L. Rev. 2055, 2064, 2072 (2003)Google Scholar (noting that domestic political factors may lead state decision makers to favor precommitment in certain contexts).
34 See generally Danesh Sarooshi, The United Nations and the Development of Collective Security (1999).
35 See, e.g., Kokott, Juliane & Sobotta, Christoph, The Kadi Case—Constitutional Core Values and International Law—Finding the Balance?, 23 Eur. J. Int’l L. 1015, 1021 (2012)CrossRefGoogle Scholar (discussing the first Kadi case in the European Court of Justice, describing subsequent changes made by the Council to its sanctions regime, and noting some potential shortcomings of the revised regime).
36 See, e.g., Burke-White, William W., Power Shifts in International Law: Structural Realignment and Substantive Pluralism, 56 Harv. J. Int’l L. 1, 55 (2015)Google Scholar (describing how China and Russia felt that Nato had improperly implemented the Council resolution authorizing the use of force in Libya and noting how this assessment influenced their later voting with respect to Syria).
37 When the trigger termination is tied to a strict standard, as was the secretary-general’s termination authority in Resolution 1267, it will provide little negotiating clout over implementation. Where the standard is more flexible, the activator’s bargaining power will be greater. In the U.S. domestic context, for example, “the mere possibility of a [legislative veto in certain contexts] also allow[ed] Congress to influence administrative decisions even when it ultimately does not exercise the power.” Fellows, Jonathan B., Congressional Oversight Through Legislative Veto After Ins v. Chadha, 69 Cornell L. Rev. 1265 (1984)Google Scholar.
38 See Meyers, Timothy L., Power, Exit Costs, and Renegotiation in International Law, 51 Harv. J. Int’l L. 379, 382 (2010)Google Scholar (highlighting this dynamic in considering the role that exit clauses can play in treaties).
39 Lorber, Eric & Feaver, Peter, Do the Iran Deal’s ‘Snapback’ Sanctions Have Teeth, Foreign Policy (July 21, 2015)Google Scholar, at http://foreignpolicy.com/2015/07/21/do-the-iran-deals-snapback-sanctions-have-teeth/.
40 See Galbraith, Jean, Treaty Options: Towards a Behavioral Understanding of Treaty Design, 53 Va. J. Int’l L. 309, 349–55 (2013)Google Scholar (suggesting several reasons why states might have preferences for the status quo).
41 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Provisional Measures, 1992 ICJ Rep. 115, 140, 142 (Sep. Op. Shahabuddeen, J.).
42 Vienna Convention on the Law of Treaties, Art. 54, May 23, 1969, 1155 UNTS 331 (providing that “the termination of a treaty or the withdrawal of a party may take place. .. [i]n conformity with the provisions of the treaty”).
43 INS v. Chadha, supra note 20. Specifically, the Supreme Court held that such termination would be an exercise of “legislative” power and further that the Constitution permitted legislative power only to be exercised by the voting procedure specified for passing laws in the first place. Id. at 944–53. But see id. at 967 (White, J., dissenting).
44 E.g., Oette, supra note 28, at 97 (finding “no doubt” about the legality of sunset provisions).
45 Aside from Caron’s article, little scholarship explores the legality of termination procedures (other than sunset provisions). Caron concluded that modified voting procedures for terminating resolutions would be lawful but did not take up whether delegation principles bounded the scope of this lawfulness. Caron, supra note 3, at 584–85; see also Matheson, Michael J., Council Unbound 31–33 (2006)Google Scholar (discussing the termination of Council resolutions without expressing any doubts about the legality of Council-designed termination mechanisms).
46 For a discussion of this much broader, long-running debate, see Alvarez, José E., Judging the Security Council, 90 AJIL 1, 2–4 (1996)CrossRefGoogle Scholar.
47 E.g., UN Charter, Art. 29 (authorizing the Council to establish subsidiary organs); id., Art. 98 (signaling the appropriateness of delegations to the secretary-general). In the discussion that follows, as elsewhere in this Comment, I do not distinguish resolutions passed under Chapter Vii from other resolutions, although most of the resolutions that I discuss have been passed under Chapter VII.
48 For discussion and legal analysis, see generally Sarooshi, supra note 34; see also, e.g., Blokker, Niels, Is the Authorization Authorized?, 11 Eur. J. Int’l L. 541 (2001)CrossRefGoogle Scholar; Spain, Anna, The U.N. Security Council’s Duty to Decide, 4 Harv. Nat’l Sec. J. 320, 331–32 (2013)Google Scholar.
49 Sarooshi, supra note 34, at 32–33 (“It was always intended that the five Permanent Members should be able to veto a decision that a particular situation constituted a threat to, or breach of, the peace or that such a situation had ended “ (emphasis added)); see also id. at 115–16, 151–52.
50 Sarooshi acknowledges that his approach is in some tension with practice. See Sarooshi, supra note 34, at 115–16 (questioning the legality of the ability of the UN Command, which was led by the United States, to conclude the armistice to the Korean War without further approval from the Security Council).
51 SC Res. 678 (Nov. 29, 1990).
52 See generally Sarooshi, supra note 34 (discussing delegations to the secretary-general, to member states, and also to regional organizations). The Council’s referral of cases to the International Criminal Court is an additional example of delegating to another international organization. See Akande, Dapo, The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC, 10 J. Int’l Crim. Just. 299, 305–08 (2010)CrossRefGoogle Scholar.
53 UN Charter, Art. 2(2); see also id., Art. 2(5).
54 Sarooshi argues that delegations to such public law entities are more legally acceptable than delegations to private actors. See Sarooshi, supra note 34, at 18 n.74. I do not discuss delegations to private actors here since I view them as unlikely in practice, but their different legal status supports a good argument that the Council cannot law fully delegate termination power to them. As to international organizations, I do not analyze the extent, if any, to which the lawfulness of delegations may differ based upon the particulars of the international organization in question.
55 See Blokker, supra note 48, at 561–62; cf. Sarooshi, supra note 34, at 41 (stating that there needs to be “clear specification by the Council of the objective for which powers are being delegated”).
56 SC Res. 794, para. 6 (Dec. 3, 1992).
57 SC Res. 1973, para. 4 (Mar. 17, 2011).
58 E.g., Prosecutor v. Tadić, Case No. It-94-1-T, Decision on Jurisdiction, para. 15 (Aug. 10, 1995) (observing that it “is a matter of logic that if the Security Council acted arbitrarily [in establishing the ICTY] or for an ulterior purpose it would be acting outside the purview of the powers delegated to it in the Charter”); Peters, supra note 23, at 203.
59 Thus, Resolution 2231 delegates to the International Atomic Energy Agency the authority to trigger the termination of the previous resolutions once Iran takes certain steps, see supra note 11, but does not give the European Union the same trigger termination authority regarding Resolution 2231 that it gives to the other JCPOA participants, see supra note 13. It is unclear what underlay this decision, but one can rule out neither delegation concerns (although the risk of arbitrary activation is less with respect to the European Union than with respect to individual countries) nor broader political and legal considerations about the relationship between the United Nations and the European Union.
60 SC Res. 2231, supra note 2, paras. 11. In addition, the state will go through the JCPOA dispute resolution procedure discussed supra note 12.
61 Cf. Liversidge v. Anderson, [1942] A.C. 206, 233 (H.L.) (Atkin, J., dissenting) (observing that good faith constitutes a limit on the actions of a public official entrusted with power if he is “satisfied” that certain circumstances exist).
62 See Caron, supra note 3, at 582– 88.
63 Id. at 561.
64 These values are manifesting themselves, for example, in the push for a responsibility not to veto and in the move to make the Council more representative by expanding it and adding more permanent members. See Banteka, Nadia, Dangerous Liaisons: The Responsibility to Protect and a Reform of the UN Security Council, 54 Colum. J. Transnat’l L. Google Scholar (forthcoming) (describing these trends and arguing that they are in fact in tension with each other).
65 See United Nations Meetings Coverage and Press Releases, Security Council, Adopting Resolution 2231 (2015), Endorses Joint Comprehensive Agreement on Iran’s Nuclear Programme (July 20, 2015), at http://www.un.org/press/en/2015/sc11974.doc.htm (summarizing the remarks made by representatives of all fifteen member countries, all of whom supported the deal and none of whom raised concerns about the legality or appropriateness of the trigger termination).
66 See “Facilitating Termination” in part Ii above. Domestic political interests might cut the other way and over ride these interests. Thus, with regard to the Iran deal, it has been politically important to the Obama Administration’s defense of the Iran deal to the U.S. public that the United States can unilaterally “snap back” the prior resolutions. See Remarks by the President on the Iran Nuclear Deal (Aug. 5, 2015) (Barack Obama: “We won’t need the support of other members of the U.N. Security Council; America can trigger snapbackon our own.”), at https://www.whitehouse.gov/the-press-office/2015/08/05/remarks-president-iran-nuclear-deal.
67 See supra notes 16–17 and accompanying text.
68 Alvarez, supra note 22, at 199.