When the president of the Security Council, acting in his capacity as the permanent representative of Russia, vetoed a draft resolution to condemn the Russian “military operation” against Ukraine in February, I immediately thought of article 27 of the United Nations Charter. I thought about the same article again when Russia presented a draft resolution to the Security Council in March on the humanitarian situation in Ukraine, and voted, along with China, in favor of its own draft that was not adopted as all the other members of the Council abstained.
Article 27 organizes the voting procedure in the Security Council. It reads as follows:
“1. Each member of the Security Council shall have one vote.
- Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.
- Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.”
Paragraph 3 establishes the veto power to the permanent members of the Security Council. However, the second half of the Paragraph applies an important legal principle, the principle of conflict of interests, to the voting process in the Security Council. A country can not be a party to a dispute and judge the outcome at the same time.
It provides for an important exception though, as countries are required to abstain from voting only if the dispute in question is considered under Chapter VI on “the pacific settlement of disputes”, or paragraph 3 of article 52 (Chapter VIII) that encourages “the pacific settlement of disputes through regional arrangements or agencies”. It excludes Chapter VII that addresses actions of the Security Council with respect to “threats to the peace, breaches of the peace, and acts of aggression” -the Chapter that regulates the legitimate use of force by the international community to restore peace and confront aggression.
This exception is not fair of course. But it is understandable in view of the circumstances in which the Charter was drafted. In the aftermath of a devastating world war, the UN was supposed to rely on the winning parties to maintain international peace and security. It was not possible to impose on them the use of force against each other, or the use of force altogether against their will. Otherwise, the world would have missed the opportunity to create a global international organization after the League of Nations collapsed because it failed to prevent the second world war. Having said that, it is important to note that pacific settlement is always preferable to the use of force. The UN and its Security Council almost always start by trying Chapter VI first before resorting to Chapter VII.
The first time paragraph 3 of article 27 came to my knowledge was in 1983 during my first undergraduate class on international organizations. It crossed my mind professionally in 1990 when I was first posted to the permanent mission of Egypt to the UN just after the invasion of Kuwait by Iraq, as the international coalition that liberated Kuwait included military forces from three permanent members of the Security Council. I thought about it again when the United States led another coalition to invade Iraq in 2003 under the pretext of disarmament. But of course the the Council addressed Iraq mostly under Chapter VII.
When Russia invaded Crimea in March 2014, I was the permanent representative of Egypt to the UN. I did ask a number of fellow representatives of permanent members and their legal advisers whether they intended to use that provision of paragraph 3 of article 27. To my surprise, some of them were not aware that such provision existed. The others were not interested. I assumed that there must be some understanding among permanent members in this regard. The draft resolution presented to the Security Council by the US and other western countries to call for an immediate Russian withdrawal from Crimea back then was vetoed by Russia.
When Russia started its “special military operation” against Ukraine on February 24th, I asked the same question again to a number of ambassadors and friends from western countries -that are not permanent members of the Security Council- accredited to the UN and/or working with the Secretariat. Their answer, not surprisingly this time, was identical. They thought there was a tacit agreement between permanent members not to invoke this paragraph so that it does not affect their common veto privileges in the Council. This confirmed my unchecked suspicions from 2014. To my knowledge, permanent members have not spoken about the issue in public. It would be interesting to hear their official points of view.
Article 27 paragraph 3, does not need further explanation. What needs explanation is why the second part of this paragraph has been gradually forgotten to the extent that it is now almost inexistent in practice. The number of times this rule has been applied is subject to a legal debate ranging from as little as 1 to as much as 20 according to different studies.* The last time it has been applied was in 1960.
If we look at the precedents, we can identify two important issues. First, this half paragraph was applied only during the first 15 years of the UN, when the Charter was freshly written. Second, countries that applied this provision in the past did it voluntarily, as the provisional rules of procedure of the Security Council do not contain any mechanism that may impose on a country to abstain from voting. And in most cases, it was non-permanent members who took the initiative to abstain from voting explicitly in accordance with Article 27 paragraph 3 -Argentina, Egypt, India, Pakistan.** In other instances permanent members of the Council abstained voluntarily from voting while reaffirming that they did not consider that this was in application of that provision.*** In one case, in 1976, the representative of France used an interesting argument, that he himself qualified as absurd, to justify casting a veto on a draft resolution that would have recognized Mayotte as an integral part of the Comoros: Although the draft was considered under Chapter VI, he mentioned that “situations of the sort should not prevent States members of the Council or states directly or indirectly concerned in the matter from casting their vote, as they undoubtedly would exercise their vote if this matter were considered in the context of Chapter VII of the Charter”. He went further to say that to act in any other way would be detrimental to the purposes of the Charter, as it would encourage these States members of the Council to take measures of force so that the matter would fall under Chapter VII, in order to ensure that their right to vote was not challenged. “I hardly need to stress the degree of absurdity we would reach if we were to apply that interpretation” he finally said.****
Objectively speaking, using paragraph 3 of Article 27 to prevent the US or Russia or any other permanent member from voting in the Security Council whether on Iraq or Ukraine, or on any other dispute under Chapter VI, would not have changed much on the ground. Nevertheless, it would have definitely enhanced the credibility of the Council and confirmed its role in establishing and applying international norms and values. It would have also proved that the permanent members take the Charter seriously. Continuing to disregard this provision when it comes to the direct interests of permanent members, only confirms the impression in people’s minds that the UN is becoming obsolete and that it can not address matters that threaten international peace and security effectively, especially if they interfere with the interests of its most powerful members.
This is not to say that the United Nations has lost its relevance. On the contrary, if we look at what has been achieved at the levels of decolonization, international law, human rights, disarmament and sustainable development, one can not but realize how important the UN was and still is for the global international order. If we stick to implementing the provisions of the Charter as they stand, we would be in a much better position to preserve peace and deter aggression.
At the same time, we should not miss any opportunity to reinvigorate the Charter and make it more relevant to present day challenges. This brings to mind the necessity to have a fresh look at the United Nations reform process. The discussions on the reform of the Security Council focus on the enlargement of both regular and permanent memberships and the expansion of the veto power. They address the reform of procedural matters as well, including exploring the possibility of restricting the use of the veto power in some flagrant cases like massive violations of international humanitarian law. As it appears so far, the discussions turn in circles. Agreement is never reached.
The enlargement of the Council’s regular membership is indispensable to reflect the growth in the number of UN members since its establishment. This has been achieved before, when the membership of the Council was augmented from 11 to 15 members in the 1960s. But in my opinion the reform process should not lead to establish additional permanent members, nor seek to expand the veto power to potential new members of the Council. We have had enough problems with the current setting of permanent membership and the veto privileges. We should not repeat the mistakes of the past.
http://www.nzlii.org › 3.pdfPDFREVIVING THE OBLIGATORY ABSTENTION RULE IN THE UN … – NZLII
**The UK did abstain from voting a number of times on the Corfu channel question and on the Egyptian Question without mentioning explicitly Article 27 paragraph 3. The US abstained from voting on the breaching of sanctions against Rhodesia in 1978 mentioning only the spirit of Article 27 paragraph 3.
***France and the UK on a complaint against them by Lebanon and Syria + France also on a complaint against it by Tunisia in 1962.
****Stephen Eliot Smith, Reviving the Obligatory Abstention Rule in the UN Security Council: Reform from the Inside Out, New Zealand Yearbook of International Law [Vol 12, 2014].