This post deals with the UN Security Council Resolution (UNSC) 2231 (2015) on the recent Iran Nuclear Deal.  The focus is on the so-called “snapback provisions” which according to  Jean Galbraith might provide a new procedural technique to circumvent the problem of the ‘reverse veto’.

The ‘reverse veto’ problem is a result of UNSC voting procedure.  As Galbraith says,

“the default position [is] that a resolution needs another resolution to terminate it and therefore that all P5 [permanent five, US, UK, France, China and Russia] members must acquiesce in this termination.”

The idea that the UNSC has the power to modify its voting procedures was raised by David Caron in 1993.  It involves understanding that any P5 member could agree to waive its veto.  This is, in effect, what happens when a time limit is placed on any UNSC resolution, i.e. a resolution that is agreed will end on such and such a date.  According to Caron,

“the Council could simply designate a termination date or terminating event for any authorization. This approach waives not only the veto, but the vote altogether.”

UN Peacekeeping Operations usually follow this ‘time-limit’ model.  See the UNSC Resolution 2234 (2015) for a recent example in relation to the Cyprus mission (UNFICYP).

In Resolution 2231 on Iran, the relevant provision is paragraph 7(a) which terminates the sanctions on Iran from the relevant provisions in UNSC Resolutions 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008), 1929 (2010) and 2224 (2015).

However, paragraph 7(a) can itself be terminated according to an agreed procedure.  If this happens, then the effect of 7(a) is terminated and the sanctions on Iran ‘snap back’ into force.  Importantly, the termination of 7(a) does not require the agreement of all the P5 members.  Instead Galbraith notes that,

“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.”

Then, if the draft resolution pursuant to paragraph 11 does not pass then all the UNSC resolutions which had been terminated by 7(a) come back into force (after a short time lag and unless the UNSC decided otherwise).

Although completely hypothetical at this stage, this modified voting procedure may have interesting implications for future UNSC decision-making.  For example, could this type of procedure have offered a way forward vis-a-vis the war in Libya?

Modified Voting Procedures and the responsibility to protect…

The responsibility to protect doctrine is hampered by several ‘structural problems’. One of these is the so-called ‘end-state problem’.  This relates to a situation where after the initial authorisation to use force is passed (as in UNSC Resolution 1973 (2011) on Libya) there is ambiguity and dilemma when faced with what to do after the initial mandate has been carried out.  As Roland Paris has noted recently,

“In cases where outside forces set out to secure a population under threat, they may achieve their initial objective but then face a quandary: how to disengage or withdraw without recreating the same threatening conditions that prompted military action in the first place.”

In Libya, the act of repelling the attack on Benghazi by Qadaffi forces did not secure their long term future.  There could easily have been a second attempt at attacking Benghazi.  In this hypothetical scenario, Qadaffi might have been less vocal and more careful about his intention to attack the city making it more difficult to intervene successfully.  As such, the intervention had a dilemma.  The mandate lacked an effective ‘end-state’ solution.  To retreat would risk the failure of the initial mandate (protect civilians) but to stay-on and defeat Qadaffi (which is effectively what occurred) would violate the terms of the mandate which did not authorise ‘regime change’.

Could the way the UNSC dealt with the Iran Deal provide a way forward?

A simple scenario would have included a provision in Resolution 1973 which provided a timetable towards the termination of the authorisation to use force if there was a complaint from a P5 member that the relevant powers (in this case UK and France) were violating, or stretching out their mandate.  This might be the case if a P5 member thought that the mission was turning too far towards regime change.

A more extreme example, but perhaps consistent with the responsibility to protect might have set out the following compromise:

  • the UNSC could have passed a resolution which authorised a “protective occupation” (to be carried out by French and UK forces, perhaps) which would defend Benghazi.
  • the UNSC could have demanded that France, UK and a Special Representative of the UN Secretary-General to initiate peace talks between the rebels and the Qadaffi regime.
  • The Arab League, the African Union and other interested parties such as the World Bank could have participated in peace talks.
  • The UNSC would have amended the UNSMIL mandate and strengthened it.
  • The presence of French and UK military on Libyan soil, backed up by a UNSC resolution might have induced Qadaffi to the negotiating table.
  • Crucially, a ‘snapback’ provision, could have been included which initiated the termination of this resolution in the event that one or two members of the UNSC complained about any aspect of the implementation of its terms.
  • This would provide a time limit, a sort of countdown to termination, which provides time for the resolution of the particular problem- whether its about the occupation, sanctions, asset freezes, the peace negotiations, etc.

This is slightly different to the Iran Deal in that it is ‘snapping-back’ to the authorisation of a military occupation rather than ‘snapping back’ to a sanctions regime.

In the end, the potential for abuse remains but it might provide a way out of the initial deadlock and towards a more active dealing with situations which require an intervention but which also demonstrate a range of opinions over the ‘end-state’ problem.

Whether ‘snap-back’ provisions could be useful in agreeing resolutions which take steps to end the war in Syria might also be interesting avenue to consider.

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