Inherited obstruction: the complaint procedure under the Biological Weapons Convention and the UN Charter rule on obligatory abstention in the Security Council

Abstract

Introduction

Soon after the start of its full-scale invasion of Ukraine in February 2022, Russia claimed to be in possession of evidence showing that the USA has been collaborating with Kyiv to develop biological agents in contravention of the 1972 Biological Weapons Convention (BWC). Following consultations among interested states parties in Geneva (which did not produce the results Moscow had hoped for), Russia formally invoked the complaint mechanism set out in Article VI BWC; a move that marked the mechanism’s first-ever utilization in the history of the Convention.¹ In accordance with the procedure set out in Article VI BWC, Russia’s allegations were subsequently considered by the UN Security Council (UNSC) in a meeting held under the agenda item ‘threats to international peace and security’ on 2 November 2022.² Following a heated debate, the Council overwhelmingly rejected the proposal (included in a draft resolution tabled by the Russian Federation itself) to establish a 15-member commission to investigate Moscow’s claims regarding the purported non-compliance by the USA and Ukraine with their obligations under the BWC.³

Due to its prompt dismissal by the Security Council, the first ‘Article VI complaint’ put forward by a state party to the BWC turned out to be short-lived. Indeed, many commentators applauded the uncompromising stance of the Council regarding Russia’s allegations against the USA and Ukraine, which they viewed as a fairly blunt attempt by Moscow at spreading disinformation in the context of Russia’s unprecedented military onslaught on its western neighbour.⁴ Nevertheless, the episode threw the spotlight, if only briefly, on Article VI BWC—a rather odd dispute settlement clause, which has so far attracted little attention both in the practice of the Convention and in international legal scholarship. Pursuant to Article VI, any state party to the BWC which finds that any other party is acting in breach of obligations deriving from the Convention ‘may lodge a complaint with the Security Council of the United Nations’; such a complaint ‘should include all possible evidence confirming its validity’.⁵

In essence, Article VI BWC ensures that a complaint lodged by a state party to the BWC is effectively removed from the ambit of the Convention and transferred to the legal regime of the UN, where it is dealt with by the Security Council on the basis of its powers and functions as set out in the UN Charter. In doing so, Article VI specifies that each state party to the BWC is obliged ‘to co-operate in carrying out any investigation which the Security Council may initiate … on the basis of the complaint received by the Council’.⁶ As the Convention itself therefore indicates, the principal action expected of the Security Council when it considers a complaint lodged under Article VI BWC is the initiation of a formal investigation (usually by a fact-finding mission or commission of inquiry) into the allegations put forward by the complaining state. It has to be stressed, however, that the Council is under no obligation to concern itself with an Article VI BWC complaint in any particular form. Rather, apart from an initial debate on the issue, the Council may well refuse to deal with the matter if it considers the evidence presented to it insufficient to confirm the validity of the complaint (a route evidently chosen by the Council in the case of Russia’s 2022 complaint).

To state the obvious, decisions by the Council in relation to a complaint lodged under Article VI BWC are subject to the voting modalities laid down in Article 27(3) of the UN Charter, including—in principle—the notorious veto right of the five permanent members of the Council (the ‘P5’).⁷ Ultimately, this implicates a major weakness of the BWC, which still lacks an independent, expert-informed mechanism to verify adherence to its provisions and instead relies on the UNSC—a political body located outside of the Convention’s normative and structural framework—to engage on an ad hoc basis with allegations of non-compliance.⁸ It is generally understood in this context that the veto power vested in the Council’s permanent members can easily be used to ensure that an Article VI BWC complaint effectively ends up dead on arrival in the Council if it is directed against any of the P5 (or, for that matter, any of its close political allies).⁹ It is for this reason that during the negotiations that led to the adoption of the BWC, a suggestion had been made (ultimately to no avail) according to which the P5 should commit themselves to waive their right to veto, at least in respect of decisions concerning investigations into alleged breaches of the Convention.¹⁰ In later years, various states have labelled the BWC’s compliance mechanism as unfair, usually by pointing out that, unlike other states parties, any of the P5 is in a position to strike down a complaint simply by making use of its veto privilege under the UN Charter.¹¹

Interestingly, at least some of the concerns related to the inherently discriminatory nature of the compliance procedure under the BWC would seem to be mitigated by the UN Charter itself. For reasons elaborated below (in ‘The entanglement between Article VI BWC and Chapter VI of the UN charter’ section), a strong argument can be made that a decision by the Security Council to establish (or reject) an investigation into alleged breaches of the BWC will normally be situated within Chapter VI of the UN Charter (on the pacific settlement of disputes). This, in turn, brings into play Article 27(3) Clause 2 UN Charter, which provides that, whenever a non-procedural decision is taken by the Security Council under Chapter VI, ‘a party to a dispute shall abstain from voting’.¹² On the basis of this proviso—which is commonly known as the obligatory abstention rule—it appears that, when the Council considers a complaint submitted to it pursuant to Article VI BWC, any member of the UN body that happens to be a party to the dispute that has given rise to the complaint is required to abstain from voting on the matter. Clearly, the issue is of lesser importance if the party concerned is a non-permanent member of the Council. But if the relevant complaint and the underlying dispute involve one (or more) of the P5, adherence to the obligatory abstention rule may make all the difference—provided, of course, that there is sufficient support for an investigation into the complaint among the remaining members of the Council.

Nevertheless, as scholars of international law and international relations are aware, Article 27(3) cl 2 UN Charter comes with a problem: it is not taken seriously by the Security Council. Indeed, in the practice of the Council, the obligatory abstention rule has only rarely been cited by any of its members as a reason to abstain, with almost all of the relevant cases dating back to the early years of the organization. As a consequence, doubts regarding the continued legal validity of the obligatory abstention rule can be traced back to the 1970s, with commentators pondering whether, in light of the Council’s institutional practice, the norm may have fallen into desuetude.¹³ As will be demonstrated (in ‘Article VI BWC and the duty to abstain in the UNSC’ section), however, the concept of desuetudo is ultimately ill-suited to come to terms with the Council’s persistent non-observance of Article 27(3) cl 2, particularly when a more holistic approach to the relevant practice is taken into account. Rather than having been revoked or modified by way of an ‘informal’ amendment of the Charter, the obligatory abstention rule remains technically in force, though it continues to be ignored by the Council for reasons of political expediency.

Following this introduction, the article proceeds with some general notes on the BWC and an account of Russia’s first-ever invocation of the complaint procedure under Article VI of the Convention. It then examines the normative entanglement between the BWC’s complaint mechanism and Chapter VI of the UN Charter. From there, we turn to a more in-depth discussion of Article 27(3) cl 2 of the Charter. We outline the provision’s scarce and overall inconclusive application in the practice of the Security Council, consider the ramifications of this practice on the rule’s continued validity and, finally, examine the effects of a possible ‘rediscovery’ of the rule for the complaint procedure under the BWC. We conclude by arguing that, while a more faithful adherence by the Council to Article 27(3) cl 2 would likely enhance the efficacy and fairness of the complaint mechanism under the BWC (at least in cases involving one or more of the Council’s permanent members), too many hopes should not be pinned on the obligatory abstention rule and its potential to curtail the veto power of the P5. Both its design and established institutional practice, coupled with ambiguous procedures for determining whether the rule applies in a particular case, will continue to leave the P5 with ample opportunities to keep their sacrosanct veto power intact.

Setting the scene: the curious case of Russia’s 2022 BWC complaint

As a general matter, the BWC prohibits the development, production, acquisition, stockpiling, and transfer of biological and toxin weapons. While the Convention does not expressly proscribe the use of such weapons, it does so implicitly by recalling the 1925 Geneva Protocol¹⁴ in its Preamble and reaffirming (in Article VIII) the obligations assumed under it by states parties.¹⁵ The BWC entered into force in 1975 and boasts a near-universal membership (currently comprising 185 states parties).¹⁶ Unlike the Geneva Protocol, the BWC bans biological weapons in international and non-international armed conflict, as well as in peacetime. As such, it represents the first multilateral disarmament treaty outlawing an entire category of weapons of mass destruction.¹⁷ Despite its innovative character, however, the Convention suffers from a number of gaps and loopholes. First, research activities concerning biological weapons are not prohibited.¹⁸ Secondly, the BWC’s ban on biological agents or toxins, ‘whatever their origin or method of production’, only applies if they are ‘of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes’.¹⁹ Since the BWC contains no clarifications on the exact types and quantities of agents that may be produced, acquired, or stored for ‘peaceful purposes’, determinations in this regard are solely left to the states parties. Given that, thirdly, the Convention lacks any verification and enforcement provisions, such unilateral determinations are not subject to any regular international scrutiny.²⁰

Past attempts at supplementing the existing BWC framework with a legally binding verification regime have so far failed. In 2001, an Ad Hoc Group, originally formed by states parties in the mid-1990s, presented a Draft Protocol that would have provided for mandatory annual declarations by states parties of biodefense facilities, randomly selected on-site visits, as well as investigations by an independent body in case of allegations of non-compliance.²¹ Although Washington had actively participated in the talks leading up to the draft, the Protocol was subsequently rejected by the USA, and no further negotiations on the matter have taken place since.²² As a consequence, the BWC is still restricted to a decidedly soft compliance mechanism, which is primarily based on confidence-building measures, consultation, and exchange of information, as well as the review by states parties of relevant scientific and technological developments.²³ Overall, the abovementioned ‘Article VI procedure’ (on the basis of which a state party may eventually submit a complaint of non-compliance to the UNSC) remains the sharpest—yet, for decades, practically irrelevant—instrument in the BWC’s limited compliance toolbox. BW-related developments are discussed in annual meetings of states parties in Geneva, which also prepare the ground for the more prestigious Review Conferences. In accordance with Article XII BWC, such conferences are convened every 5 years (with the inaugural Review Conference occurring in 1980) for the purpose of evaluating the efficacy of the Convention in light of its stated objectives and substantive provisions.

Until recently, many arms-control experts and diplomats considered the BWC one of the least prioritized arms-control treaties.²⁴ But much has changed since Russia’s full-scale invasion of Ukraine and the ensuing war, which—at the time of writing—is still ongoing. In March 2022, Moscow claimed to have gathered intelligence showing that the USA had set up a large-scale biological warfare programme on the territory of Ukraine. Faced with Russia’s ‘special military operation’ (as Moscow prefers to call its armed intervention), Ukrainian forces were said to have removed evidence of such a programme by way of an ‘emergency clean-up’.²⁵ Upon Russia’s request, the Security Council convened for an open meeting on Ukraine (the sixth such meeting since the full-blown escalation of the crisis) on 11 March 2022. At the meeting, Russia’s Permanent Representative to the UN asserted that the US Defense Department was financing and directly supervising ‘a network of at least 30 biological laboratories’ in Ukraine, ‘where extremely dangerous experiments aimed at enhancing the pathogenic properties of plague, anthrax, tularaemia, cholera and other deadly diseases … are being conducted’.²⁶ Apart from the categorical rejection of these accusations by the USA, Russia’s allegations were also met with scepticism by several other permanent (France, UK) and non-permanent members of the Council. Albania was perhaps catching the general mood in the Council when its delegate warned Moscow against deploying ‘a crescendo of allegations’ amid the very real conflict in Ukraine.²⁷ That said, China, as well as (to a lesser extent) the African members Gabon, Ghana, and Kenya, indicated that Russia’s concerns were serious enough to deserve international attention and thus should be addressed by the Council.²⁸ As for the UN, the High Representative of Disarmament Affairs, Izumi Nakamitsu, explained that the organization was not aware of any biological weapons programmes in Ukraine.²⁹

Following a further Council meeting on the issue in April 2022, which again did not produce any formal outcome,³⁰ Russia, on 13 June 2022, forwarded diplomatic notes both to the USA and to Ukraine containing a series of questions regarding compliance by those states with their obligations under the BWC.³¹ In these notes, Moscow pointed to Article V BWC, which provides that states parties have to engage in consultations in order to solve ‘any problems which may arise in relation to the objective of, or in the application of the provisions of, the Convention’. In its response, delivered on 22 August 2022, Washington noted that Russia’s Aide Memoire did not contain any factual questions, ‘but rather a series of assertions and mischaracterizations of various documents that the Russian Federation claims to have obtained during Russia’s war against Ukraine’.³²

By August, however, Russia had already taken the matter a step further. At the end of June 2022, Moscow submitted a request to the BWC depositary states for a Formal Consultative Meeting under Article V BWC (in accordance with a procedure defined by the Third Review Conference in 1991).³³ The meeting (only the second such event in the BWC’s history)³⁴ eventually took place from 5 to 9 September 2022, with a total of 89 states parties attending.³⁵ Similar to discussions on the Russia–Ukraine conflict held within the UN framework, the positions expressed during the Consultative Meeting can broadly be attributed to either of the following groups of states: A relatively small group largely supportive of the claims presented by Russia,³⁶ a larger group (mainly consisting of Western states) emphatically discarding those claims as fabricated and part of a deliberate disinformation campaign³⁷ and, finally, a group (almost equal in size to the second group and essentially made up of states representing the ‘Global South’) expressing more cautious, unspecified, and/or mediating views.³⁸ Unsurprisingly, then, the Chairperson’s final report affirmed that ‘no consensus was reached regarding the outcome of the Formal Consultative Meeting’.³⁹

Dissatisfied with the result of the Geneva meeting, Russia announced its intention to now resort to the complaint procedure under Article VI BWC, thus bringing the matter to the attention of the UNSC. Russia’s complaint was formally lodged on 24 October 2022.⁴⁰ It was supplemented by a draft resolution, which, had it been adopted by the Council, would have set up a commission (consisting of all 15 members of the Council) tasked to further investigate Moscow’s claims against the USA and Ukraine.⁴¹ As such, the Russian proposal took up the reference in Article VI(2) BWC, according to which the Security Council may initiate an investigation, in accordance with the provisions of the UN Charter, on the basis of the complaint submitted to it. However, as per the text of the draft resolution, the commission would have been given only 4 weeks to complete its work. It would then have been required to report back to the Council (together with recommendations) and to subsequently present its findings to the Ninth BWC Review Conference, which was slated to take place in December 2022.⁴² Notably, the draft contained no details as to who would chair the proposed commission, how the commission would organize its work, and by which procedure it would carry out its inquiry.

As already mentioned, in the Security Council meeting of 2 November 2022, only Russia and China voted in favour of the draft. France, the UK, and the USA voted against, while all of the 10 non-permanent members abstained from voting. In a way, the voting behaviour seemed to reflect the stalemate that has engulfed the Security Council ever since Russia started its all-out war against Ukraine, with the P5 once again mired in political and ideological tensions and the E10 more or less sitting on the fence.⁴³ Yet, upon closer inspection, the en bloc abstention by the Council’s non-permanent members in the vote on the Russian proposal can hardly be taken as collective indifference on the part of these members towards Moscow’s allegations. Mexico, for instance, explicitly stated that ‘the condition set forth in Article VI [BWC], namely, that the party alleging violations of the Convention must provide credible evidence to trigger an investigation, has not been met’.⁴⁴ Likewise, Norway opined that ‘Russia’s spurious allegations do not justify a request for the consideration of the Security Council under Article VI of the BWC’.⁴⁵ In a similar vein, Albania, Brazil, Ireland, and (more cautiously) Ghana shared the view that Russia had failed to provide sufficient evidence supporting its claims against the USA and Ukraine.⁴⁶

As could be expected, Russia proved itself as ‘extremely disappointed’ with the fact that the Council did not agree to activate the mechanism provided for under Article VI BWC—an outcome it ascribed to ‘the usual colonialist mentality’ on the part of the USA and its ‘satellites’.⁴⁷ Following its setback at the UN, Russia attempted to again transfer the issue back to the BWC arena in December 2022 by bringing its claims regarding US-financed biological laboratories in Ukraine to the table of the Ninth BWC Review Conference in Geneva. Ultimately, Russia’s allegations appeared to play some role in the deliberations of states parties.⁴⁸ However, contrary to Moscow’s expectations, the final document of the Review Conference remained silent on the matter.⁴⁹

The entanglement between Article VI BWC and Chapter VI of the UN Charter

Whatever one makes of Russia’s contentious invocation of Article VI BWC, the episode aptly illustrates some of the legal and practical intricacies arising from the peculiar interrelationship between the Convention’s complaint procedure and the UN Charter system pertaining to international peace and security. For one, Russia’s draft resolution, which was meant to give birth to a Security Council-mandated investigation into alleged violations of the BWC by the USA and Ukraine, did not contain any suggestion whether, by adopting the text, the Council would be acting under Chapter VI (on the peaceful settlement of disputes) or Chapter VII (on action in respect of threads to international peace and security) of the Charter. Though resolutions (as well as other Council acts and decisions) rarely come with explicit references to their precise legal basis in the UN Charter, the issue nonetheless raises the question of how, from a legal perspective, the Council may proceed in handling a complaint received under Article VI BWC.

Evidently, no provision of the UN Charter specifically entitles the Security Council to check compliance by Member States with provisions of arms-control treaties that they have entered into. Any decision on a complaint submitted to the Council in accordance with the BWC must therefore be anchored in the general powers conferred on the Council by the UN Charter, particularly those pertaining to its main business—the maintenance of international peace and security.⁵⁰ Here, Article 34 (located in Chapter VI) of the Charter is of particular relevance, since it specifically empowers the Council to investigate any dispute or any situation ‘which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security’. There can be no doubt that this provision provides an adequate legal basis for an investigation into an Article VI BWC complaint considered by the Council, given that such a complaint will usually involve a controversy between states parties to the BWC about whether a violation of obligations deriving from the Convention has in fact occurred.⁵¹ It is likewise clear that action under Article 34 of the Charter in no way requires the actual existence of a threat to international peace and security. Rather, it is the purpose of an investigation is to furnish the Council with the requisite factual basis to ascertain whether a given dispute (or situation) may evolve into such a threat. In the event that the Council determines this to be the case, it must then decide which, if any, additional steps should be taken in accordance with Chapters VI, VII, and/or VIII of the Charter.⁵²

As a result, the handling by the Security Council of an Article VI BWC complaint that has made it onto the Council’s agenda⁵³ will normally be a two-stage affair. Stage 1 (the fact-finding stage) involves the decision of whether to initiate an investigation, usually by a commission of inquiry specifically installed by the Council for this purpose. Stage 2 (the assessment and, as the case may be, enforcement stage) implicates the decision of whether, based on an evaluation of the results of the preceding investigation, further measures need to be taken by the Council. Regarding the latter, the Council may (but is under no obligation to) adopt mandatory measures, such as sanctions, against identified violators of the BWC—provided that, at this point, the Council determines that the dispute or situation in question constitutes a threat to international peace and security.⁵⁴

Considering the wording of both Article VI(2) BWC (‘may initiate’) and Article 34 UN Charter (‘may investigate’), it goes without saying that the initiation of an investigation in response to a complaint received under Article VI(1) BWC remains within the full discretion of the Security Council. As noted above, the usual normative habitat within which the Council is expected to take such a decision is Chapter VI of the UN Charter. To be sure, the Council’s competence to initiate an investigation is not exclusively limited to Chapter VI (let alone Article 34, which is in fact rarely used) but may also be covered by the ancillary (or ‘implied’) powers attached to the distinctive functions of the Council under other provisions of the Charter.⁵⁵ Indeed, following the demise of the Cold War, the Council has on occasion acted under Chapter VII of the Charter to establish investigations or fact-finding missions, especially in the context of allegations regarding grave violations of international human rights and humanitarian law.⁵⁶ Bearing in mind that the Council typically remains silent on the exact basis of its decisions in the Charter, it thus may be challenging to ascertain whether a (draft) resolution mandating an investigation into a dispute or situation was adopted (or rejected) on the basis of Chapter VI or Chapter VII.⁵⁷ Generally, the political context and wording of the resolution, the use (or non-use) of specific terminology, as well as any possible further measures foreseen by the Council alongside the establishment of an investigation, constitute factors that assist in identifying the relevant legal basis under such circumstances.⁵⁸

Absent any reference to the distinctive language of Article 39 UN Charter, one may reasonably assume that when the Security Council decides on an investigation it will normally be acting under Chapter VI, particularly in view of the fact that Article 34 provides an explicit legal basis for such action. Nevertheless, if the issue is brought up by one of its members, the decision of whether or not a given measure falls under Chapter VI will ultimately be made by the Council itself. In practice, such issues are decided on the basis of informal consultations before a draft resolution is officially tabled in the Council by its sponsor(s). Still, in case a vote on the matter is formally requested, the well-known problem resurfaces: whether the determination by the Council regarding the legal basis of a given resolution constitutes a ‘procedural’ matter in terms of Article 27(2) or a ‘substantive’ matter in terms of Article 27(3) of the Charter. Owing to the well-known system of the ‘double veto’, the question likely must be answered in favour of the latter alternative, meaning that the veto will apply to such a decision.⁵⁹ Recently, however, Zimmermann opined that a Council decision on whether a draft resolution falls within the scope of Chapter VI or Chapter VII is not subject to the double veto, since otherwise, the rule enshrined in the second part of Article 27(3) ‘would … become obsolete’.⁶⁰ Obviously, the rule Zimmermann refers to here is the obligatory abstention rule, to which we will turn in a moment.

In the case of Russia’s draft resolution of October 2022 (by which Moscow thought to bring the Security Council to act upon the complaint submitted by it under Article VI BWC), the abovementioned considerations come to bear. Although the draft lacks any reference to Chapter VI of the Charter, nothing in the text indicates that it was meant to be adopted under Chapter VII. Neither the general statement in the preamble about the importance of the BWC ‘for international peace and security’⁶¹ nor the affirmation in the operative part of the draft, according to which states parties to the BWC ‘must give the utmost priority to the full implementation of all their obligations assumed under the Convention’,⁶² are in any way reflective of Chapter VII language. And while the war in Ukraine certainly provided the larger political context of the draft resolution, Russia meticulously made sure not to include in the text any linkage between its BWC-related allegations against Ukraine and the ongoing military conflict. Hence, given that the Russian draft was restricted to a proposal to set up a Council-mandated commission to investigate claims of purported non-compliance by the USA and Ukraine with their obligations under the BWC, and that, in principle, such an undertaking finds a sound legal basis in Article 34 of the Charter, it can plausibly be argued that the Council acted within its Chapter VI powers when it eventually rejected Russia’s proposal.

Article VI BWC and the duty to abstain in the UNSC

General observation

As noted earlier, when the draft resolution emanating from Russia’s complaint under Article VI BWC was put to a vote in the Security Council, both Russia itself and the USA (against which, next to Ukraine, the claims put forward by Moscow were directed) took part in the voting. Apparently, this was considered ‘business as usual’ in the Council, even though the states concerned (Russia and USA) could well be seen as parties to the dispute that has triggered Moscow’s complaint. Proceeding from the assumption that, by voting on the Russian draft, the Security Council was acting under Chapter VI of the Charter, this seems problematic. After all, Article 27(3) cl 2 UN Charter plainly requires Council members to abstain from voting if they are parties to a dispute considered by the Council under Chapter VI (or paragraph 3 of Article 52, which deals with the pacific settlement of disputes through regional arrangements).⁶³ While the duty to abstain in such circumstances applies to both permanent and non-permanent members of the Council, it is evident that—given their veto power—the rule is of much more importance in cases involving one (or more) of the P5.⁶⁴

It can be argued, of course, that any abstention by Russia and the USA in the present case would have been pointless, given that the draft tabled by Moscow did not even meet the minimum requirement of nine affirmative votes, as set out in Article 27(3).⁶⁵ Moreover, in addition to the USA, France and the UK also rejected the proposal—two further permanent members of the Council whose negative votes would have counted as vetoes and, thus, prevented the adoption of the draft resolution even if there had been a sufficient number of affirmative votes supporting it. That said, these circumstances also may have allowed the USA to engage in a tactical manoeuvre vis-à-vis Moscow without risking the eventual adoption of a text to which it was clearly opposed. In light of the fact that the Russian draft resolution never stood a realistic chance of being adopted by the Council, the USA could have used the opportunity to abstain from voting by explicitly invoking Article 27(3) of the Charter and urging the Russian Federation to follow its example. While Russia surely had refused to do so, it may still have prompted a much-needed debate in the Security Council on the applicability and scope of the obligatory abstention rule, which, in the practice of the Council, has thus far been honoured rather in its neglect than its observance. However, fully aware that this could backfire in other scenarios, in which the USA may find itself on the receiving end of calls to abstain if it were perceived as a ‘party’ to a dispute considered by the Council, Washington clearly had no intention of establishing a precedent here.

The (non-)application of the duty to abstain in the practice of the Council

In historical perspective, Article 27(3) cl 2 of the Charter was the result of a compromise between the USA and the UK on the one side, and the former Soviet Union on the other, which was eventually endorsed—as part of the so-called ‘Yalta Formula’—by the four Sponsoring Governments (USA, UK, China, and the Soviet Union) during the UN Founding Conference in San Francisco.⁶⁶ While the USA and the UK maintained that a member of the Security Council should not be a judge in its own cause (nemo iudex in sua causa) and hence should be required to abstain from voting when involved in a dispute dealt with by the Council (even if the Council is contemplating measures under what would become Chapter VII of the Charter), the Soviet Union rejected any attempts to attenuate the envisaged veto privilege of the permanent members of the Council. The compromise was to enshrine, in Article 27(3), a duty to abstain (only) for members who are ‘parties’ to a ‘dispute’, provided that the Council is dealing with that dispute under Chapters VI or VIII (and not Chapter VII) of the Charter.⁶⁷

In the practice of the Council, members have only rarely abstained from voting in compliance with the obligatory abstention rule. According to a compilation provided in 2014 by Security Council Report, 12 such instances can be identified between 1946 and 1960.⁶⁸ As early as February 1946, France and the UK abstained from voting on three proposals (which ultimately failed adoption) concerning calls for the removal of their troops from Lebanon and Syria, notwithstanding the principal objection of both the French and the British representatives to the ruling by the President of the Council that a dispute indeed existed in that case.⁶⁹ A year later, the UK abstained several times from voting in the Council by (implicitly) acknowledging Article 27(3) cl 2 of the Charter. Two abstentions pertained to draft resolutions related to the Corfu Channel Question,⁷⁰ while a total of 11 UK abstentions were recorded in the context of debates on the Egyptian Question.⁷¹ Citing Article 27(3), Egypt likewise abstained in 1950 from voting on a draft text regarding the establishment of the Truce Supervision Organization in the Israel–Palestine conflict.⁷² Further instances occurred between 1950 and 1953, when, during their tenure as non-permanent members of the Council, both India and Pakistan abstained whenever a resolution was dealing with the India-Pakistan Question, with India expressly affirming that its abstentions were based on Article 27(3).⁷³ Finally, in 1960, Argentina abstained from voting on a Council resolution criticizing Israel’s abduction of Adolf Eichmann from Argentina. In explaining its abstention, Argentina referenced Article 27(3) but, notably, also declared that it did ‘not wish to enter into a legal or procedural analysis of the application of the wording [of that Article] to the case we are considering’.⁷⁴ To date, there has been only one further case in which an abstaining Council member expressly referenced the rule. In 1978, during the debate on a text that would become Resolution 437 condemning the invitation of Ian Smith (the then leader of the UN-sanctioned regime of Southern Rhodesia) into US territory, the US delegate announced to abstain from voting ‘in the spirit of Article 27(3) of the Charter’.⁷⁵ However, given the opaqueness of the delegate’s statement and the fact that Resolution 437 (1978) arguably dealt with a ‘situation’ (and not a dispute), the case cannot be said to reflect a proper application of the obligatory abstention rule.⁷⁶

While, in the early years of the UN, clear instances of non-compliance with Article 27(3) cl 2 have been the exception rather than the rule,⁷⁷ negligence in the application of the provision has, in later years, effectively turned into a Security Council routine. Commentators have pointed to a number of cases, both prior and after the end of the Cold War, in which Council members directly involved in a dispute being considered by the Council participated unchallenged in votes on measures adopted in relation to that dispute under Chapter VI of the Charter.⁷⁸ Apart from the BWC case discussed in this article, the Russian veto against the draft resolution of 25 February 2022, which sought to deplore Russia’s aggression against Ukraine and to demand the unconditional withdrawal of Russian forces from Ukraine’s territory, likely constitutes a further example of blatant ignorance of the obligatory abstention rule. In its final version, the draft lacked any reference to Chapter VII and also used conspicuously soft terms (such as ‘deplores’ instead of ‘condemns’) to garner sufficient support in the Council.⁷⁹ Nevertheless, absent any debate whether the resolution would come under Chapter VII or Chapter VI, Russia’s veto was accepted without the Council even alluding to the possibility of applying Article 27(3) cl 2. Only Norway remarked (after the vote) that ‘as a party to a dispute Russia should have abstained from voting on the draft resolution’.⁸⁰ In essence, this followed a script already applied 8 years earlier, when the Council considered a draft resolution that would have condemned Russia’s annexation of Crimea.⁸¹ Despite the fact that the draft contained clear Chapter VI language and expressly affirmed the existence of a dispute, the Russian veto preventing the adoption of the text remained unopposed in the Security Council chamber.⁸²

The current legal status of the obligatory abstention rule

The fact that the Council has for decades refrained from applying the duty to abstain as provided for in the Charter inevitably raises the question of the continued validity of the rule. Specifically, it might be argued that Article 27(3) cl 2 has ceased to be effective because conflicting practice over a substantial period of time has led to a subsequent rule of customary international law, or a tacit agreement among Member States, according to which the duty to abstain set forth in that provision no longer applies (the desuetudo argument).⁸³ Ultimately, such a reading of the Council’s continued deviation from the rule would be tantamount to an informal amendment of the UN Charter, which, as a matter of principle, can only be considered if the applicable practice is supported by opinio juris and has not met with any (explicit or implicit) resistance by Member States.⁸⁴ Similarly, the long-lasting non-observance of the duty to abstain by the Council and its members might be viewed as ‘subsequent practice’ in terms of Article 31(3) lit (b) of the Vienna Convention on the Law of Treaties,⁸⁵ which has established the agreement of the parties to interpret Article 27(3) cl 2 of the Charter in a distinctly reductive fashion (which in effect would again result in an amendment of the Charter).⁸⁶ The decisive issue here is whether the alleged reinterpretation of the rule by the Council (a body comprising only a limited number of states) can be construed as having manifested a corresponding agreement amongst UN Member States in their entirety. Generally, it is widely accepted that, when it comes to the interpretation of constituent treaties of international organizations, the (institutional) practice of the organization—rather than the practice of the parties to the treaty—carries particular weight.⁸⁷ In the Namibia Advisory Opinion, the International Court of Justice (ICJ) has confirmed that the consistent routine of the Security Council in treating voluntary abstentions of its permanent members as ‘concurring votes’ within the meaning of Article 27(3) cl 1 (a position ensuring that such abstentions do not prevent the adoption of resolutions) ‘has been generally accepted by Member States … and evidences a general practice of that Organisation’.⁸⁸ In the understanding of the International Law Commission, the Court thereby acknowledged that acquiescence by UN Member States regarding the practice followed by an organ of the organization in the application of the Charter suffices to presume the establishment of an agreement among the parties regarding the interpretation of the Charter.⁸⁹

It is highly questionable whether any of the abovementioned variations of ‘informal Charter reform’ can be employed to successfully dispute the continued formal validity of Article 27(3) cl 2 of the Charter. While the Security Council’s non-application of the obligatory abstention rule seemingly has continued for decades, a survey of the Repertoire of the Practice of the Security Council reveals that, over the years, the issue of Article 27(3) abstentions has been addressed on various occasions by members of the Council as well as non-Council members.⁹⁰ Thus, prior to 1991, there have been at least 10 instances in which the question of obligatory abstention was raised (though without success) in the course of Council meetings.⁹¹ While members who took part in a vote despite a presumptive duty to abstain frequently justified their participation by arguing that the issue under consideration was not a dispute or was not dealt with by the Council on the basis of Chapter VI, there has only been one case in which the validity of the rule as such was openly called into doubt. In 1976, France vetoed a draft resolution, tabled in response to a request by the Comoros, that would have rejected a referendum (planned by Paris) on the territorial status of the island of Mayotte. Citing Article 27(3), several non-permanent members subsequently questioned France’s right to take part in the vote, given that, in their view, the draft resolution had clearly been aimed at the peaceful settlement of a dispute to which France was a party.⁹² The French delegate responded by holding that for years ‘the Council has always felt that situations of the sort on which we had to take a decision today should not prevent 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’.⁹³ The French position triggered a contentious debate, with the President of the Council eventually clarifying that, as a general rule, challenges to a Member State’s right to vote must be raised prior to the vote.⁹⁴

Overall, the picture did not drastically change in the post-Cold War era. In January 1992, during the debate preceding the adoption of Resolution 731 (1992) concerning the Lockerbie incident, Libya held that ‘[t]he legality of the Council’s work is subject to its observance of the provisions of the Charter’ and that, in light of Article 27(3) cl 2 of the Charter, it was ‘inconceivable that this could be achieved through the participation of the parties to this dispute in the voting on the present draft’.⁹⁵ In 1998, in the course of a Council meeting commemorating the tenth anniversary of the Lockerbie incident, Libya reaffirmed this position.⁹⁶ In October 2014, in an open debate on the Council’s working methods, Australia generally noted that the application of the obligatory abstention rule deserves greater attention by the Council, considering that ‘[t]here is no procedural issue of greater substantive import to the Council’s effectiveness and credibility than the constraints around the use of the veto’.⁹⁷ Likewise, when Ukraine joined the Security Council for 2 years in 2016, Kyiv expressed its disgrace at the fact that Article 27(3) ‘continues to be blatantly ignored’.⁹⁸ In November 2018, Georgia reminded Council members that, 9 years earlier, Russia had vetoed the extension of the mandate of the UN Observer Mission in Georgia, despite the fact that Russia was a party to the conflict that had erupted in the country in August 2008.⁹⁹ More recently, Denmark, Finland, Iceland, Norway, and Sweden expressly referred to the obligatory abstention rule in a joint statement prepared for the Intergovernmental Negotiations on UN Reform. After recalling that the rule has been successfully invoked ‘in only a limited number of early instances of the Council’s history’, the five Nordic countries stated that ‘[i]t will be important to consider how to further bolster the practice associated with Article 27(3), since a veto cast by the aggressor in a given conflict … is a violation of the very foundation of the Charter of the United Nations’.¹⁰⁰ Likewise, in a statement delivered to the General Assembly in April 2023, Germany declared that ‘in abusing its veto to advance its own interests in the context of the war of aggression in Ukraine, the Russian Federation … violated Art. 27(3) of the Charter’.¹⁰¹ Similar pronouncements were made on the same occasion by Albania, Bulgaria and, again, Georgia.¹⁰²

In light of recurrent invocations of Article 27(3) cl 2 of the Charter, both by members and, (more often), non-members of the Security Council, the idea that the provision has ceased to be effective by way of desuetudo, or has been modified by an interpretative agreement according to which its observance is left to the full discretion of each of the members of the Council, is difficult to sustain. The fact that the Council’s indifference towards the rule has repeatedly been subject to critical debate simply does not support the presumption of sufficient opinio juris regarding the rule’s replacement by a new, conflicting customary norm. It also does not back the notion of an institutional practice that was generally accepted by UN Member States as a valid reinterpretation of the rule. Consequently, while the habitual non-observance of Article 27(3) cl 2 by the Council has undeniably compromised the potency of the obligatory abstention rule,¹⁰³ it has (for now) not deprived the rule of its legal status.¹⁰⁴

Implications for the complaint procedure under the BWC

As follows from the foregoing, Article 27(3) cl 2 UN Charter is indeed ‘not dead’,¹⁰⁵ at least not in a formal sense. At the same time, there can be no denying that, due to the Council’s continued disregard of the rule, it has effectively become dormant. Ultimately, this result was facilitated to a large degree by the design of the rule itself. Since it is only applicable when the Council is acting under Chapter VI or VIII (not under Chapter VII) and when there is a ‘dispute’ (not a situation) to which a member of the Council is a ‘party’, the rule offers several ways to circumvent it without technically violating it. Nevertheless, some commentators suggest that the reactivation of Article 27(3) cl 2 in a single instance would suffice to revive the obligatory abstention rule in accordance with the original spirit of the Charter.¹⁰⁶ In practical terms, the rule would need to be invoked by a member of the Council (most likely a non-permanent member) prior to a vote on a matter that, at least prima facie, appears to fall within the scope of the rule; thereby forcing the Council to evaluate the claim and to determine whether, in the case at hand, one (or more) of its members is under an obligation to abstain. This is consistent with the ICJ’s clarification in Namibia, according to which Article 27(3) cl 2 ‘requires for its application the prior determination by the Security Council that a dispute exists and that certain members of the Council are involved as parties to such a dispute’.¹⁰⁷

Therein, however, lies the problem. As White has recently noted, it is highly unlikely that a permanent member, which might be regarded as a party to a dispute will allow the Security Council to make such a determination.¹⁰⁸ This conclusion is essentially owed to the fact that, if the preliminary question of whether Article 27(3) cl 2 applies in a given case would be put to a vote, the Council first has to decide on the ‘pre-preliminary’ issue whether that vote is to be considered substantive (and thus subject to the veto) or merely procedural. Evidently, the latter would be unacceptable to the P5—and while any of the Council’s elected members may challenge this position, there really is no interest on either side to revisit the agonizing and ultimately fruitless debate about the permanent members’ claim to the ‘double veto’. As a result, each of the P5 can safely rely on its veto power should the Council be forced to formally decide whether a dispute exists and, if so, who the parties to it are.¹⁰⁹ While Zimmermann rightly observes that this effectively renders the duty to abstain inapplicable to the P5, his stipulation that ‘the system of the double veto must [for this reason] find its inherent limit with regard to Article 27(3) cl 2’¹¹⁰ has hitherto never been tested in practice. Indeed, there is no precedent in the history of the UN for a formal vote by the Security Council on any of the preliminary issues that have been cited by the ICJ in Namibia.¹¹¹

As far as the complaint procedure under the BWC is concerned, therefore, it appears that there is little to be gained from the finding that the obligatory abstention rule is, in principle, still a valid UN Charter norm. Beyond its indeterminacy (‘dispute’, ‘party’) and the (related) problem of the double veto, there is the further problem that attempts at applying the rule in a particular case today would arguably mean ignoring the legitimate normative expectations on the part of affected Council members. The reason for this lies precisely in the fact that the rule has been disregarded for decades by both permanent and elected members without any consequence and that abstaining members, which in the past have occasionally invoked Article 27(3) cl 2, have exclusively done so based on their own initiative (not because they were pressured by the remainder of the Council to do so).¹¹² Absent an authoritative clarification of the issue by the ICJ, it is also unclear how a veto cast by a permanent member, held to be a party to a dispute that is considered by the Council under Chapter VI, is to be dealt with. Writing in 1950, Kelsen argued that a vote cast in such circumstances is illegal and ‘must not be counted’.¹¹³ It is not easy to see how this might be implemented in practice. Following Kelsen’s proposition would ultimately require the Council to declare a draft resolution adopted notwithstanding the proclaimed will of a permanent member to the contrary. By necessity, all other permanent members (as well as a sufficient number of non-permanent members) would need to support such a move, knowing that, as a consequence of the precedent that is thereby set, their vote may likewise be ignored in a similar situation in the future.

Conclusion

In November 2022, the Security Council rejected a draft resolution tabled by Russia to investigate claims regarding alleged non-compliance by the USA and Ukraine with their obligations under the BWC. We have taken this episode as a starting point to revisit the BWC’s complaint mechanism and to examine the role provided therein for the UNSC. As implied by Article VI BWC, if the Security Council considers the evidence put forward in a complaint of non-compliance received by it under said provision as prima facie credible (a condition the Council has not seen fulfilled in case of the Russia’s 2022 complaint), it is expected to initiate an investigation to ascertain, on the basis of its outcome, whether the allegations put forward by the complaining state are accurate and, if so, which further steps should be taken to settle the issue. In light of the fact that, as of yet, the BWC does not have any specific verification regime, the complaint procedure foreseen in Article VI thereby effectively entrusts the Council with the role of the custodian of the Convention.

The limits of this approach are evident. If a complaint is directed against one of the five permanent members of the Council (or any of its close allies), the veto power of that member can prevent the adoption of any pronouncement or measure regarding the dispute. It is for this reason that the BWC’s complaint mechanism is often perceived as discriminatory and widely ineffective. Indeed, during the November 2022 debate over Russia’s ill-fated Article VI complaint, a number of (non-permanent) Council members have firmly expressed their preference for equipping the BWC with a legally binding verification mechanism run by an independent expert body, instead of continuing to rely on politically charged debates at the level of the Security Council in cases of purported non-compliance.¹¹⁴

Against this backdrop, we have considered whether the obligatory abstention rule enshrined in Article 27(3) of the UN Charter may offer a way out of the conundrum described here, at least as far as the fact-finding stage of the complaint mechanism provided for in the BWC is concerned. As has been demonstrated, a decision by the Council regarding an investigation in response to a complaint lodged under the BWC will normally fall within the scope of Chapter VI of the Charter. Typically, such a decision pertains to a non-procedural matter, characterized by a dispute between two or more states parties to the BWC over an alleged violation of obligations assumed under the Convention. In principle, therefore, the preconditions for the application of the obligatory abstention rule will be in place when a decision on fact-finding in relation to a complaint submitted pursuant to Article VI BWC is on the Council’s agenda. In such a scenario, any Council member that is a party to the dispute in question would be obliged to abstain from voting. Notably, this includes permanent members, who would be precluded from obstructing the Council via their veto power at this stage of the procedure.

Nevertheless, for now, this remains theory. Decades of systematic disregard of Article 27(3) cl 2 by the P5—a practice that, while criticized, has never been formally opposed by any of the non-permanent members of the Council—have effectively placed the obligatory abstention rule in a twilight state. Though, from a legal standpoint, the rule is not ‘dead’, it is not fully alive either. As matters stand, this state of affairs is likely to continue, unless—to paraphrase a remark made by Ukraine’s delegate to the Security Council in 2016—‘clear proceedings [are] introduced for operationalizing and properly implementing paragraph 3 of Article 27 of the Charter’.¹¹⁵ And yet, even if this proposal were to be taken up by the Council (for instance, on the basis of an advisory opinion from the ICJ, requested by the General Assembly),¹¹⁶ the rule’s capacity to render the complaint procedure under Article VI BWC less discriminatory and more effective would still be constrained. It is not difficult to envisage a scenario in which, following an investigation mandated by the Council, further measures appear to be necessary to ensure compliance with the BWC by a state party found to have breached obligations deriving from the Convention. To the extent that this implies the adoption of coercive measures under Chapter VII of the Charter, the obligatory abstention rule is no longer in the game, irrespective of whether the case in question involves a permanent Council member and regardless of whether that member can be considered a party to the conflict. Consequently, at this stage of the procedure (the enforcement stage), the veto privilege of the P5 clearly unfolds its power unimpeded. Notwithstanding ongoing efforts by UN Member States to curtail the veto through informal means (for instance, the French–Mexican initiative on voluntary suspension of the veto in cases of mass atrocities, the ACT group’s proposal of a code of conduct regarding Council action in response to genocide, crimes against humanity, and war crimes, or the Lichtenstein-led ‘veto initiative’ in the General Assembly),¹¹⁷ it is evident that this situation will only be comprehensively resolved if the Security Council’s anachronistic voting modalities are officially revised. Whether the recent pledge by world leaders to ‘intensify efforts to reach an agreement on the future of the veto, including discussions on limiting its scope and use’¹¹⁸ increases the likelihood of such a revision remains to be seen. It appears prudent, however, to maintain a healthy dose of scepticism in this regard.

Footnotes