Revitalizing the obligatory abstention rule in the UN Security Council: an interpretation of the Proviso in Article 27 (3) of the UN Charter

Abstract

1. Introduction

Since Russia’s invasion of Ukraine, which commenced in February 2022, considerable attention has been paid to the proviso in Article 27 (3) of the United Nations Charter¹ that provides for what is referred to as obligatory or compulsory abstention. Article 27 (3) stipulates, ‘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’.² This obligatory abstention rule arose during the drafting of the UN Charter as a result of the compromise between the UK, which argued for the application of the nemo iudex in re sua (no one is the judge in their own matter) principle to the procedures of the United Nations Security Council (UNSC) in general, and the USSR, which was eager to maintain a strict principle of unanimity rule among the major powers.³ Even the permanent members of the UNSC are prevented from exercising their veto power under the Chapter VI procedure when they are parties to a dispute, which is in clear contrast to Chapter VII procedures.

Russia has repeatedly deviated from the obligatory abstention rule. It vetoed UNSC draft resolution S/2022/155 deploring Russia’s aggression against Ukraine and UNSC draft resolution S/2022/720 declaring that Russia’s actions with regard to the so-called referenda taken in parts of Ukraine can have no validity.⁴ Even facing Russia’s invasion of Ukraine, the UNSC has so far only adopted a presidential statement.⁵ It has not adopted a Chapter VI resolution, let alone a Chapter VII resolution. At the meeting of the United Nations General Assembly (UNGA) on 26 April 2023, many States criticized Russia’s vetoes. Among others, Germany stated:

Moreover, in abusing its veto to advance its own interests in the context of its war of aggression in Ukraine, the Russian Federation violated paragraph 3 of Article 27 of the Charter of the United Nations, which states that a party to a dispute shall abstain in the voting.⁶

However, demands for implementing the obligatory abstention rule have rarely been voiced at UNSC meetings. When asked about a possible obligatory abstention by Russia at a press conference, the US representative did not provide an answer to it.⁷ Such silence on the obligatory abstention rule is somewhat understandable. As scholars have indicated, the practice of the UNSC on this rule has been ‘rather inconsistent, erratic and uncertain’,⁸ and the practical application of the rule ‘appears to encounter considerable difficulties’.⁹

In this connection, Anne Peters has discussed legal limitations on Russian vetoes in the context of the obligatory abstention and she insists that ‘[t]he current situation between Russia and Ukraine (and its allies) is a “dispute” broadly conceived’.¹⁰ Indeed, this statement highlights the difficulties of applying the proviso in Article 27 (3). What is the broadly conceived notion of a dispute? Is such a ’dispute’ different from a ‘situation’? Whatever definition of a dispute is adopted, Russia and Ukraine are clearly parties to the current dispute. Then, are other allies of Ukraine, such as the USA and the UK also parties to this dispute?

This article considers the legal issues surrounding the proviso of Article 27 (3) with the goal of revitalizing obligatory abstention within the UNSC. Part 2 of this article investigates past practices of the UNSC and considers whether the obligatory abstention rule maintains its legal validity despite the prolonged non-applications of the rule. Part 3 analyses the notion of a ‘situation’ as referred to in the UN Charter provisions and its legal implication for the application of the obligatory abstention rule. Part 4 examines the notion of a ‘dispute’ and the standard used to determine who are parties to a dispute in the context of the obligatory abstention rule. This article asserts that the traditional definition of a ‘dispute’ as developed by international courts must be set aside in relation to the rule and that a UNSC draft resolution could serve as the basis for determining who the parties to a dispute are.

2. The obligatory abstention rule in practice

As mentioned above, considerable uncertainty surrounds the practice with regard to the obligatory abstention rule. Before attempting analyses of legal issues, it would be advisable to categorize relevant practices into compliance or non-compliance cases. The survey that follows is based on several existing studies,¹¹ the Repertoire of the Practice of the Security Council and UNSC verbatim records. It should be noted that the survey is not exhaustive. Moreover, clear cases of compliance with the obligation to abstain under the proviso of Article 27 (3) are only found in the early years of the UN.

A. Cases in which the obligatory abstention rule was presumably complied with

As the UK was eager to introduce the nemo iudex in re sua principle into UNSC procedures during the drafting of the UN Charter, it sought to demonstrate, at least in the early stages of UNSC practice, its strong attachment to the obligatory abstention rule. The first instance of compliance with the rule relates to the case of the Corfu Channel question,¹² in which British ships were damaged by mines in that channel. At the 122nd and 127th meeting of the UNSC in 1947 on this question, the UK did not participate in the voting without referring to the proviso of Article 27 (3).¹³ This was presumably a case of compliance with the obligatory abstention rule, given that the UK had qualified the matter as a dispute.¹⁴ Subsequently, at the 198th, 200th, and 201st meetings in 1947, at which UNSC members discussed the presence of British troops in the Egyptian territories, the UK ‘did not take part in the voting’ while making clear mention of Article 27.¹⁵

The India-Pakistan question (Jammu and Kashmir question) is notable for the parties’ strict and continuous observations of the obligatory abstention rule. India repeatedly abstained from the voting at the 470th and 471st meetings in 1950, and 539th, 543rd, 548th, and 566th meetings in 1951.¹⁶ In particular, at the 471st meeting, the UNSC president stated that India ‘considers its abstention as non-participation in the vote, on the ground that India is an interested party’, and this statement was confirmed by India.¹⁷ Likewise, Pakistan was present and did not vote at the 611th meeting in 1952.¹⁸

As to the complaint by China in 1950 that the US Air Force had invaded Chinese territory, China did not participate in the voting twice—once regarding a draft resolution submitted by the USA and again regarding a draft by the USSR.¹⁹ At the 524th meeting in 1950 regarding the Palestine question, Egypt took a cautious position. Having stated that ‘in order to allay the legal worries of everybody, I shall abstain from voting by virtue of Article 27, paragraph 3 of the Charter’, Egypt made the reservation that ‘if I abstain from voting today, that will not be binding at all as a legal position for the future with respect to my Government’.²⁰ The legal effect of this qualification, however, is unclear.

What was presumably the last case of obligatory abstention was practised by Argentina in the course of the deliberations on the kidnapping of Adolf Eichmann. At the 868th meeting in 1960, Argentina was present and did not vote. After making mention of the proviso in Article 27 (3), Argentina stated:

My delegation does not wish to enter into a legal or procedural analysis of the application of that wording to the case we are considering, but for reasons of tact, which I am sure the Council will understand, my delegation requests the President and, through him, the Council for permission not to take part in the vote.²¹

Meanwhile, the UK and the USA took ambiguous positions with regard to the situation in Southern Rhodesia. The UNSC adopted resolution 437 (1978) that notes with regret the US’ decision to allow the entry into the USA of the members of the illegal regime in Southern Rhodesia. Then, the USA clarified its position that since it is ‘a party to this particular matter’, it had abstained from the voting, ‘acting in the spirit of Article 27 paragraph 3’ of the UN Charter.²² At the time of the adoption of resolution 463 calling upon the UK as the administering power to create conditions for fair elections in Southern Rhodesia, the UK did not participate in the voting without explaining the legal basis for its non-participation.²³ Since this instance, there has been no record of the application of obligatory abstention under Article 27 (3).

B. Cases in which the obligatory abstention rule was not presumably complied with

The first case of non-compliance dates back to the 501st meeting in 1950 regarding the complaints by China about the US’ invasion of Chinese territory.²⁴ At this meeting, the USA participated in the voting on a draft resolution submitted by itself and vetoed another draft presented by the USSR.²⁵ On 3 July 1952, at the 587th meeting, the USA voted for a draft resolution on the investigation of alleged bacterial warfare in the Korean war by the USA.²⁶ On 26 July 1960, both the USA and the USSR participated in voting on three draft resolutions concerning the USSR’s complaint that the US Air Force had violated the USSR’s air space.²⁷ The USA also participated in the voting on the adoption of resolution 144 (1969), which, referring to various articles in Chapter VI and Article 52 of the UN Charter, decides to adjourn the consideration of the question between the USA and Cuba.²⁸

From the mid-1960s, various States began disregarding the obligatory abstention rule. At the 1328th meeting in 1966 in relation to the Israeli military actions on Jordanian territory, Jordan took part in the voting on the adoption of resolution 288 (1966).²⁹ On 22 August 1968, the USSR vetoed a draft resolution condemning the USSR’s armed intervention in Czechoslovakia. Hungry, then a member of the Warsaw Pact, also voted against the adoption.³⁰ On 28 July 1969, Zambia participated in the voting on resolution 268 (1969), which dealt with its own complaint about the Portuguese bombing.³¹ On 9 December 1969, Senegal voted for the adoption of resolution 273 (1969), which calls upon Portugal to desist from violating the territorial integrity of Senegal.³² On 11 May 1970, at the 1536th meeting on the independence of Bahrain, the UK—despite its status as the administrating power of Bahrain—participated in the voting on the adoption of resolution 278 (1970).³³ On 21 March 1973, when the UNSC dealt with the Panama Canal problem, the USA and Panama both participated in the voting with respect to a draft resolution urging both States to conclude a new treaty ‘aimed at the prompt elimination of the causes of conflict between them’.³⁴ On 28 May 1974, Iraq, which had brought its own complaint concerning the incidents on its frontier with Iran, voted on resolution 348 (1974), which welcomes the two parties’ determination to de-escalate the situation.³⁵ On the situation concerning Western Sahara, resolution 377 (1975) was adopted by consensus. Mauritania, apparently one of the interested parties regarding this question, was among the UNSC members at that time.

It is striking that in the above-mentioned cases, no UNSC member raised the issue of the observance of the obligation to abstain under Article 27 (3). In relation to the situation in Comoros, UNSC members engaged in in-depth discussions about the obligatory abstention rule. At 1888th meeting on 6 February 1976, France vetoed a draft resolution that considers the holding of a referendum in Mayotte by France as an interference in the internal affairs of Comoros. However, Benin and Libya voiced their doubt as to France’s right to vote. France attempted to justify its use of the veto by referring to the previous votes by the USA and Panama in 1973 on the Panama Canal problem, stating that situations of these kinds should not prevent concerned States from casting their vote.³⁶

Even after this discussion, deviations from the obligatory abstention rule continued. On 4 December 1976, the USA voted for the adoption of resolution 461 (1979), which calls upon Iran to release the personnel of the US Embassy.³⁷ On 11 April 1980, Zambia voted on resolution 466 (1980) with regard to its own complaint against South Africa.³⁸ This resolution demands that South Africa withdraw all its military forces from Zambia’s territory. On 19 May 1983, the UNSC adopted resolution 530 (1983), which deeply concerns at the danger of a military confrontation between Honduras and Nicaragua. The latter participated in the voting on the adoption of the resolution.³⁹ On 12 September 1983, the USSR’s use of its veto hampered the adoption of a draft resolution deeply deploring the USSR’s attack on a Korean airliner.⁴⁰ On 10 May 1985, the US participated in the voting on the adoption of resolution 562 (1985), which calls upon the USA and Nicaragua to resume the dialogue ‘for normalizing their relations’.⁴¹ On 21 April 1986, the USA also eroded the obligatory abstention rule by vetoing a draft resolution condemning the US’ armed attacks on Tripoli and Benghazi.⁴² Furthermore, a draft resolution of 22 December 1989 demanding the withdrawal of the US forces from Panama was vetoed by the USA, the UK, and France.⁴³ On 17 January 1990, the USA once again vetoed a draft resolution declaring the US’ action to be a violation of the privileges and immunities of the residence of the Nicaragua ambassador in Panama.⁴⁴

At the 3033rd meeting in 1992 on the well-known Lockerbie bombing case, Libya demanded that the USA and the UK observe the obligation to abstain in accordance with Article 27 (3). Despite this, however, the UNSC unanimously adopted resolution 731 (1992) urging Libya to give ‘a full and effective response’ to the requests by the USA and the UK.⁴⁵ On 15 March 2014, Russia vetoed a draft resolution declaring that the referendum of 16 March 2014 on the status of Crimea could have no validity nor form the basis for the alternation of the status of Crimea.⁴⁶

C. Has the obligatory abstention rule fallen into desuetude?

From the above analysis, the following three points can be pointed out. First, once a State admits its own obligation to abstain as a party to a dispute, it is also obliged to do so in future meetings on the same subject, as demonstrated by the India–Pakistan question. The burden placed on States by the obligation to abstain is heavier than it appears at first sight. Second, legal uncertainties remain regarding the application of the obligatory abstention rule. In some cases, such as the situation in Comoros, States expressed criticism that a certain State must abstain from voting as a party to a dispute, even though they did not represent the standard to identify a party to dispute. What is more, States sometimes interpreted a matter as a ‘situation’ rather than as a ‘dispute’ in order to avoid the application of the rule in question.⁴⁷ Here, as well, they did so without elucidating the definition of a ‘situation’. Those legal issues will be returned to in Parts 3 and 4 of this article.

Third, there has been the UNSC members’ persistent unwillingness—especially on the part of the USA—to implement the obligatory abstention rule. The constant erosions of the obligatory abstention rule have engendered suspicion among scholars that the rule has fallen into desuetude, ie the termination of a treaty due to the prolonged non-application by the parties of the treaty. Tavernier already pointed out in 1976 ‘le probléme de savoir si la pratique ainsi suivie a conduit à la désuétude ou à l’abrogation de la règle posée à l’article 27 § 3 in fine de la Charte’.⁴⁸ Security Council Report even reaches the opinion that ‘[o]bligatory abstentions seem to have vanished under a tacit agreement’.⁴⁹ Similarly, according to Goodrich, Hambro and Simons, the requirement to abstain under Article 27 (3) had been treated only as ‘a guide to members in their voting’.⁵⁰ There are two possible legal bases for the desuetude of a treaty: a tacit agreement among parties on the termination of the treaty, and a supervening custom emerging from the non-applications of the treaty over a long period of time.⁵¹ The prolonged failure of UNSC member States to comply with the obligatory abstention rule may be seen as having resulted in a tacit agreement or custom of this kind.

Nevertheless, there is also considerable evidence that refutes the desuetude thesis. At the 2350th meeting in 1982, Panama asked the UNSC president to rule on whether the UK, as a party to a dispute, had an obligation to abstain from voting on a draft resolution relating to the Falkland/Malvinas War. The UK replied that it was entitled to participate in the vote because the draft resolution, which finds a breach of the peace, falls under Chapter VII of the UN Charter. Subsequently, resolution 502 (1982) was adopted by 14 affirmative votes, with no UNSC member challenging the UK’s voting right.⁵² It is of great importance that the UK participated in the voting not because the obligatory abstention rule had died out, but because the resolution was adopted under Chapter VII. With regard to the Lockerbie bombing case, as shown above, Libya required the USA, the UK, and France to fulfil their obligation to abstain in accordance with Article 27 (3).⁵³ These three countries participated in the voting for a draft resolution on the grounds that what the UNSC was dealing with was not a dispute concerning the interpretation or application of the Montreal Convention, but rather a situation arising from a grave security concern.⁵⁴ In spite of this apparent deviations from the obligatory abstention rule by the USA, the UK, and France, no UNSC member touched on the possibility of the desuetude of the rule.

Recent events surrounding Russia have influenced UN member States to pay considerable attention to the problem of fairness in the context of Chapter VI procedures. Posts on X (formerly Twitter) by Liechtenstein in 2014 and in 2023,⁵⁵ and by New Zealand in 2016 called for the application of the proviso of Article 27 (3).⁵⁶ More impressively, at the 69th meeting in 2023 of the UNGA 77th session, demands for the implementation of the obligatory abstention rule were voiced by so many States, including the Baltic states (Estonia, Latvia and Lithuania), the Netherlands, Nordic states (Denmark, Finland, Iceland, Norway and Sweden), Liechtenstein, Australia, Singapore, Ecuador, Romania, Austria, Mexico, Malaysia, Malta, Bulgaria, Germany, Albania, and Georgia.⁵⁷ In particular, Denmark on behalf of the Nordic states said:

Furthermore, the Nordic countries note the importance of fully implementing Article 27, paragraph 3, of the Charter, which essentially entails that a State should not be allowed to be party, judge and jury at the same time. We must consider with some urgency how to ensure that provision is better adhered to in practice.⁵⁸

Upon above considerations, it can be concluded that there is no tacit agreement or custom in favour of the termination of the rule in question. UNSC members are still legally required to observe the obligatory abstention if they are parties to a dispute.

3. The notion of a ‘situation’

A. The ICJ advisory opinion in Namibia case and doctrinal debates

The most important judicial precedent regarding the proviso of Article 27 (3) is the ICJ Advisory Opinion in the Namibia case. In this case, South Africa claimed that because the matter in question was related to a dispute between South Africa and other members of the UN, the proviso should have been complied with in adopting the relevant UNSC resolutions. The ICJ Opinion rejected this argument by stating:

The question of Namibia was placed on the agenda of the Security Council as a “situation” and not as a “dispute”. No member State made any suggestion or proposal that the matter should be examined as a dispute, although due notice was given of the placing of the question on the Security Council’s agenda under the title “Situation in Namibia”. Had the Government of South Africa considered that the question should have been treated in the Security Council as a dispute, it should have drawn the Council’s attention to that aspect of the matter. Having failed to raise the question at the appropriate time in the proper forum, it is not open to it to raise it before the Court at this stage.⁵⁹

According to this statement, if a matter put on the UNSC agenda is characterized as a ‘situation’, not as a ‘dispute’, then the obligatory abstention rule is inapplicable. Some UN Charter provisions, such as Articles 11 (3) and 14, refer only to situations; other provisions, such as Articles 12 and 35, refer to both situations and disputes.⁶⁰ Because the proviso of Article 27 (3) only mentions a ‘dispute’, the interpretation given by the ICJ Opinion might not be impossible at least in the light of the wording of the proviso alone. The ICJ’s argument raises two issues that are closely related to each other.

The first issue is what constitutes a ‘situation’ in the context of Chapter VI procedures. Heated doctrinal debates have been had on this issue. According to Kelsen, situations as referred to in Chapter VI must imply ‘a possible or actual conflict between states’.⁶¹ De Brabandere submits that a situation can be ‘a general state of disagreement, opposition or antagonism’, and is broader than the notion of a dispute.⁶² Schweisfurth regards a situation as a preliminary stage of a dispute, relying on the wording of Article 34 of the UN Charter.⁶³ Blum holds that whereas disputes normally involve two States, multilateral questions tend to be situations.⁶⁴ Tavernier also argues that when the problem is about decolonization, it tends to be situations rather than disputes.⁶⁵ These definitions are diverse and somewhat confusing, because there is no clue as to the definition of a ‘situation’ in the Charter provisions.

The second issue is whether the existence of a situation rules out that of a dispute. The ICJ Advisory Opinion in the Namibia case seems to take the position that if a matter under the UNSC’s consideration constitutes a situation, then it cannot be a dispute. Interestingly, whereas the second edition of Simma’s Commentary on the UN Charter defines a situation plainly as ‘actual facts’ and insists that the existence of a dispute presupposes that of a situation,⁶⁶ the third and fourth editions sees a dispute and situation as mutually exclusive.⁶⁷ If the notion of a situation is so broad as to include the notion of a dispute, whether a matter constitutes a situation is irrelevant to the application of the obligatory abstention rule, contrary to what the ICJ Advisory Opinion stated.

B. Debates between UN member states

During the early years of the UNSC, there were in-depth discussions about the distinction between a situation and a dispute. When the UNSC dealt with the Syrian and Lebanese question at the 19th meeting in 1946, Egypt stated whether the obligatory abstention rule applies depends on whether the matter is a dispute or a situation. The other UNSC members, such as the Netherlands, Mexico and the USSR, also expressed the same view.⁶⁸ Because the UK and France voluntarily abstained from voting in the ensuing meeting, no decision was made on this point.⁶⁹ At the 1888th meeting in 1976 concerning the situation in Comoros, as already shown above, France pointed to the US and Panama’s voting in 1973 on the Panama Canal problem as a precedent justifying France’s use of veto. Panama countered at this same meeting by stating:

In the case where the Security Council visited Panama, the Council essentially was dealing with a situation which affected the entire region and the Council, furthermore, adopted a number of resolutions. Hence, Panama was bringing no complaint before the Security Council; it did not level any accusations against the United States and the Council was not in fact dealing with a dispute between Panama and the United States.⁷⁰

Similarly, in relation to the ICJ proceeding of the Lockerbie case, the US counter-memorial in 1999 stated that ‘[t]he text of the Resolution, and the circumstances of its adoption, make clear that the Council sought to address a situation within the ambit of Articles 34 and 35 of the UN Charter, not a dispute subject to Article 27(3)’.⁷¹ Subsequently, the UK counter-memorial in 1999 cited Article 34 of the Charter, which expressly distinguishes between disputes and situations, and maintained that because the UNSC did not determine that a dispute exists, it was a situation that the UNSC dealt with in the Lockerbie case.⁷²

It should be noted that, although the aforementioned statements by the States referred to a ‘situation’ as a notion that does not trigger the application of the obligatory abstention rule, none of statements elucidated the definition of a situation and why the relevant matters fall within the category of a situation. Therefore, no meaningful conclusion as to the definition of a situation can be drawn from the debates among UN member states.

C. The practices of the UNSC

The word ‘situation’ has been ubiquitous in UNSC practice, particularly since the 1960’s. Resolution 7 (1946) on the Spanish question already stipulates that ‘the Security Council on 29 April 1946 appointed a Sub-Committee to investigate the situation in Spain’.⁷³ In Resolution 282 (1970) on the question of the race conflict in South Africa, the UNSC is ‘gravely concerned by the situation arising from the violations of the arms embargo’.⁷⁴ As to titles of agenda items, which ICJ insisted are critical for determining the applicability of the obligatory abstention rule, there have been many formulations including the word ‘situation’, such as ‘situation in the occupied Arab territories’ and ‘situation between Iran and Iraq’.⁷⁵ The UNSC, however, has not provided a definition of a ‘situation’, nor has it explained why it has frequently used this word.

Of particular note is the wording of resolution 126 (1957) on the India–Pakistan question. On this matter, the two parties strictly and repeatedly complied with the obligatory abstention rule. While the preamble of the resolution recognizes ‘the dispute’ between the parties, its operative paragraph requests both governments to refrain from making any statements ‘which might aggravate the situation’.⁷⁶ Obviously, a ‘dispute’ and a ‘situation’ are used simultaneously on the same matter. In addition, with regard to the complaint by Argentina (Eichmann Case), Argentina abstained from voting on the adoption of resolution 138 (1960) in accordance with Article 27 (3). This abstention should have assumed the existence of the dispute between Argentina and Israel. Yet, the preamble of the resolution notes that ‘the repetition of acts such as that giving rise to this situation would involve a breach of the principles upon which international order is founded’.⁷⁷ These resolutions demonstrate that a situation can exist in parallel with a dispute and that the existence of a situation in itself does not set aside the obligation to abstain in accordance with the proviso of Article 27 (3).

In more recent practice, the use of the word ‘situation’ has become more common. Among the 57 resolutions adopted in 2021, 44 contain the word ‘situation’. Among the 54 in 2022, 42 contain this word, and among the 50 in 2023, 48 contain the word. For instance, resolution 2672 (2023) on the situation in the Middle East provides that ‘the devastating humanitarian situation in Syria continues to constitute a threat to peace and security in the region’.⁷⁸ Moreover, in resolution 2698 (2023) on the maintenance of international peace and security, the UNSC ‘[e]xpresses its intention to continue to review the situation and consider, as appropriate, renewing the authority provided in this resolution for additional periods’.⁷⁹ Resolution 2708 (2023) on Sudan and South Sudan also states that ‘the current situation in Abyei and along the border between Sudan and South Sudan continues to constitute a threat to international peace and security’.⁸⁰

Although what constitutes a ‘situation’ still remains unclear, it appears that the UNSC has labelled as a ‘situation’ a wide range of circumstances that are relevant to its duties under the UN Charter. For the purpose of this study, it is sufficient to state that the definition of a ‘situation’ is so broad that it may exist in parallel with a ‘dispute’. In other words, a situation and a dispute are not mutually exclusive.

This interpretation is perfectly consistent with the reading of the Charter provisions. Article 40 provides for the UNSC power, ‘in order to prevent an aggravation of the situation’, to call on the parties to comply with provisional measures. It is unreasonable to argue that once such a situation turns into a dispute, the UNSC loses said power. It should be understood that the UNSC may call on the parties under Article 40 to prevent an aggravation of a situation, even if a dispute exists on the same matter. The same holds true for Article 11 (3), which stipulates that the UNGA has the power to call the attention of the UNSC ‘to situations which are likely to endanger international peace and security’. Indeed, the UNGA possesses this power with regard to such situations, irrespective of whether disputes exist. Thus, what is necessary for the application of the obligatory abstention rule is not a determination on whether a matter falls into a category of a situation but rather a determination on whether a dispute exists and who the parties are to the dispute—an issue that is thoroughly investigated in the next part of this article.

4. The notion of a ‘dispute’

A. The prior determination by the UNSC that a ‘dispute’ exists

The most questionable argument in the ICJ Advisory Opinion in the Namibia case is its emphasis on the prior determination by the UNSC as a legal requirement for the application of the obligatory abstention rule. The Opinion states:

A similar answer must be given to the related objection based on the proviso to paragraph 3 of Article 27 of the Charter. This proviso also 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.⁸¹

Zimmermann, endorsing the ICJ opinion, asserts that the proviso under Article 27 (3) requires for its application ‘a prior twofold determination’ by the UNSC, ‘namely that a dispute exists and one or more of [UNSC] members are involved as parties to such a dispute’.⁸² Some scholars argue that such a UNSC determination is necessary only when a conflict of opinion arises in terms of whether a certain matter has the character of a dispute.⁸³

Surprisingly, there appears to be no precedent of such prior determinations by the UNSC. Nevertheless, Bailey asserts that the only matter that was determined as a dispute by the UNSC was the India–Pakistan question at the 286th meeting in 1948.⁸⁴ Certainly, resolution 47 (1948), which was adopted at this meeting, mentions in its preamble ‘the complaint of the Government of India concerning the dispute over the State of Jammu and Kashmir’,⁸⁵ and the two parties—India and Pakistan—fulfilled their obligation to abstain at the following meetings.⁸⁶ This resolution might be taken as an example of a prior determination by the UNSC that a dispute exists. However, it must be noted that those two States recognized the matter between them as being a dispute at the very beginning of the discussion at the UNSC before resolution 47 was adopted. Pakistan claimed at the 228th meeting in 1948 that both parties had agreed that ‘disputes have arisen between them’,⁸⁷ and India described the Jammu and Kashmir question as ‘this particular dispute’ at the 230th meeting in 1948.⁸⁸ The positions of the two States, rather than the UNSC’s prior determination (resolution 47), seems to have been the principal basis for their strict compliances with the obligation to abstain under Article 27 (3).

Furthermore, in the other instances in which the obligatory abstention was carried out—namely the Corfu Channel question in 1947, the Egyptian question in 1947, the Palestine question in 1950 and the complaint by Argentina (Eichmann Case) in 1960—no UNSC prior determination that a dispute exists had been made, nor was a UNSC resolution containing the word a ‘dispute’ adopted.

It follows that the UNSC’s prior determination as a legal requirement for the application of the obligatory abstention rule is not supported by the wording of Article 27 (3) or UNSC practice. This means that even without the UNSC’s prior determination, parties to a dispute do have the obligation to abstain from voting. As a matter of course, the UNSC may make the prior determination, given its broad and discretionary powers under Chapter VI of the UN Charter. Nothing in the Charter prevents the UNSC from doing so, and it may be preferable to make the prior determination when the UNSC member States are divided over whether a dispute exists or who are parties to a dispute. However, the ICJ’s assertion in the Namibia case that the prior determination is a legal requirement goes too far.

B. The definition of a ‘dispute’ and a standard for determining the parties to a dispute

(i) The report of the interim committee of the UNGA in 1948

The definition of a dispute and the standard for determining the parties to a dispute in the context of Article 27(3) are fundamental problems that has caused the longstanding paralysis of the obligatory abstention rule. There have been chiefly three positions on this issue. The first position was advanced by the report of the Interim Committee of the UNGA in 1948 regarding the problem of the voting in the UNSC. According to this report, in deciding whether a matter is a dispute for the purpose of the proviso in Article 27 (3), the UNSC shall hold that a dispute exists:

Whenever the State or States bringing the matter before the Security Council allege that the actions of another State or States in respect of the first State or States constitute a breach of an international obligation or are endangering or are likely to endanger the maintenance of international peace and security, or that such actions demonstrate preparation to commit a breach of international obligations or to endanger the maintenance of international peace and security, and the State or States which are the subject of these allegations contest, or do not admit, the facts alleged or inferences to be drawn from such allegations.⁸⁹

The UK, an ardent supporter of the obligatory abstention rule during the UN’s early years, proposed this somewhat verbose definition, which leaves ambiguity. If this definition means that a dispute arises only between a State which brings a matter to the UNSC and a State which is the subject of the allegation submitted by the former State, then this definition is apparently unworkable. A State directly involved in a dispute can ask other States to bring a matter to the UNSC, thereby arbitrarily sidestepping the obligation to abstain. Article 35 of the UN Charter states, ‘[a]ny Member of the United Nations may bring any dispute, or any situation… to the attention of the Security Council’.

If the above definition means that a dispute arises between a State which submits allegations against another State and the latter State which contests or does not admit these allegations, then this definition is essentially identical to the definition developed by the jurisprudence of international courts, which will be analysed below.⁹⁰

At any rate, after UNGA resolution 267 (iii) recommended that the permanent members of the UNSC give favourable consideration to the above-mentioned definition,⁹¹ the UNSC president stated at the 452nd meeting in 1949 that ‘[a]n effort has been made… but agreement is not now possible’.⁹² Thus, the definition proposed by the Interim Committee is not an authoritative interpretation of the proviso in the Article 27 (3).

(ii) Transferring the notion of a dispute from jurisprudence

The most straightforward way to establish the notion of a dispute in the context of the obligatory abstention rule would be to transfer the notion of a dispute as developed in case laws of international courts into UNSC procedures. This article will now briefly touch on the notion of a dispute within jurisprudence. According to a well-known statement by the PCIJ in Mavrommatis Palestine Concessions case, ‘[a] dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons’.⁹³ ‘A mere assertion’ does not constitute a dispute; it must be proved that ‘the claim of one party is positively opposed by the other’.⁹⁴ Although a formal diplomatic protest ‘is not a necessary condition’,⁹⁵ a party to the dispute must be ‘aware, or could not have been unaware’, that its views are positively opposed by the other party.⁹⁶ One could read those requirements strictly or loosely, but, as PCA put it, the threshold for the existence of a dispute ‘is rather low’.⁹⁷ It should be noted that these statements are not so much about legal disputes but about disputes in general in international law.⁹⁸

Some scholars, in the context of the obligatory abstention rule, have adopted the notion of a dispute that is similar to or nearly identical to the Mavrommatis formula. For example, Zimmermann defined a dispute as ‘a disagreement on a point of law or fact, or a conflict of legal views or of interests [that] exists between the two (or more) members of the SC which are supposed to be under an obligation to abstain’,⁹⁹ and Kelsen states that a dispute, ie ‘contending in argument’, exists ‘only if the one has addressed a claim to the other state and if the latter has refused to comply with this claim’.¹⁰⁰ Tomuschat, discussing the notion of a dispute in the general context of the UN Charter, submits that a ‘dispute arises when a State addresses specific claims to another State, which the latter State rejects’.¹⁰¹

Such definitions of a dispute as a conflict of claims between States were also endorsed in the UNSC meetings in the early years of the UN. At the 19th meeting in 1946 on the Syrian and Lebanese question, when it was discussed whether the matter was a situation or dispute, the UK stated that ‘if a State makes a charge against another State, and the State against which it is made repudiates it or contests it, then there is a dispute’.¹⁰² In the same vein, the USA stated at the 84th meeting in 1946 on the Greek question that a dispute arises for the application of Article 32 of the UN Charter if ‘[c]harges have been made against these Governments, and these Governments have contested these charges and made counter-charges’.¹⁰³

A significant instance for assessing the relevance of the Mavrommatis formula in the context of the application of the obligatory abstention rule is the Palestine question in 1951. In this instance, Egypt restricted the passage through the Suez Canal, which was guaranteed under the 1888 Treaty of Constantinople. Egypt’s actions were opposed by Israel, which was evidently a party to the dispute, as well as by the other UNSC members. Egypt relied on its rights of self-preservation and self-defence and the provisions of the Egyptian-Israel General Armistice Agreement to justify its actions.¹⁰⁴ France, the UK, and the USA, however, contested Egypt’s claim,¹⁰⁵ and they submitted a draft resolution calling upon Egypt to terminate its restrictions on the passage through the Suez Canal and to cease all interference.¹⁰⁶

At the UNSC 553rd meeting in 1951, Egypt attempted to prevent the adoption of the draft resolution by using the obligatory abstention rule. While referring back to the statement by the UK representative at the 19th meeting (see above), which read, ‘if a State makes a charge against another State and the State against which it is made repudiates it or contests it, then there is a dispute,’ Egypt insisted:

I take it that the representatives of such members of the Council as France, the Netherlands, the United Kingdom and the United States, which are parties to this dispute will, in conformity with the last part of Article 27 of the Charter, abstain from voting.… That there is a dispute is clear from the fact that Israel and other countries, some of which have in vain tried to hide behind Israel, are disputing the right of Egypt to impose the present restrictions on the passage of some war materials to Israel through the Suez Canal….That such countries as France, the Netherlands, the United Kingdom and the United States—to which we might add, because of its protest, Turkey—are parties to the present dispute is undeniable.¹⁰⁷

At the 555th meeting in 1951, the UK rebutted Egypt’s argument by saying:

The complaint or accusation might be brought to the Council by a group of States, and might be brought against more than one State. In the present instance, however, only two States are concerned. The matter has been brought before the Council by the Government of Israel and the complaint is directed against the Government of Egypt. The dispute, if there is a dispute, is between Israel and Egypt, and between nobody else.¹⁰⁸

The definition of a dispute shown by the UK here is the same as the UK proposal contained in the report of the Interim Committee of the UNGA. The focus of this definition is a referral of a matter by a state to the UNSC. Since this definition allows States to bypass the obligation to abstain, as discussed above, the UK’s response to Egypt is not persuasive.

On the other hand, Egypt’s insistence cuts to the heart of a problem about the application of the obligatory abstention rule: are so many States obliged to abstain from voting in accordance with the proviso in Article 27 (3)? Conforti and Focarelli have rightly pointed out this conceptual problem of a dispute, saying that if one were to adopt a notion similar to the Mavrommatis formula, ‘all the members of the Security Council would nearly always have to abstain from decisions taken on the basis of Chapter VI of the Charter’.¹⁰⁹ This is because matters handled by the UNSC are usually of such immense political importance that they become the object of considerable discussion among many States. Conflicts of views and claims on such matters are commonplace both inside and outside of UNSC meetings. Consequently, under notions such as those of the Mavrommatis formula, many members of the UNSC would be required to abstain from voting as parties to a dispute in accordance with the proviso in Article 27 (3). This could lead to the paralysis of the UNSC. If Egypt’s position had been adopted with regard to the Palestine question, the UNSC would not have been able to adopt a resolution since the adoption required at least seven affirmative votes at that time.¹¹⁰ This problem is critical for the application of the obligatory abstention rule. The notion of a dispute as developed in judicial procedures could not be applied, at least in a straightforward way, to diplomatic procedures, such as Chapter VI procedures of the UN Charter. One reason for this is that, in UNSC procedures, the members themselves are participants in international politics, having more or less interests in disputes, but at the same time, they are judges who make judgements on disputes through their act of voting. This is not the case with judicial procedures in which the judges are not representatives of States.

This problem is of significant relevance in the present day. Regarding Russia’s invasion of Ukraine that began in February 2022, there is no doubt that Russia and Ukraine are both parties to the dispute. At the UNSC meetings, Germany condemned Russia for ‘violating the core principles of the Charter of the United Nations’,¹¹¹ the USA said that Russia has chosen to violate international law and the Charter of the United Nations,¹¹² and the other Western UNSC members criticized Russia in the same manner. Although Russia has relied on Article 51 of the Charter to justify its actions,¹¹³ the UK considered that the invasion ‘is not self-defence under Article 51’.¹¹⁴ In addition, a draft resolution submitted by the 81 UN member states, including seven Council members, deplores Russia’s aggression against Ukraine in violation of Article 2 (4) of the Charter, and decides that Russia shall cease its use of force.¹¹⁵ In essence, there has been a ‘disagreement on a point of law or fact, a conflict of legal views or of interests’ between Russia and the other Council members. While, to establish the existence of a dispute in multilateral settings, one must give attention ‘to the content of a party’s statement and to the identity of the intended addressees’,¹¹⁶ these UNSC members’ claims have been very specific in terms of their contents and their addressees are crystal clear. Their claims are not ‘a mere assertion’, but are ‘positively opposed by the other’,¹¹⁷ and Russia and the other UNSC members are fully aware of these opposing claims.

Therefore, as long as one adopts the Mavrommatis formula, a dispute exists not only between Russia and Ukraine but also between Russia, and the USA, the UK, France, Norway, Ireland, and so forth. The consequence of this would be nonsensical; it would be virtually impossible for the UNSC to secure nine affirmative votes to secure the adoption of a resolution (Article 27 (3)), not because of many states opposing the adoption but because of a lack of necessary voting rights within the UNSC. The many obligations to abstain that would arise from numerous disputes would paralyse the UNSC.

(iii) Substantive notions and standards

The formalist notion of a dispute, which focuses on how States submit their views or claims, must be abandoned for the application of the obligatory abstention rule. Instead, a more substantive notion or standard must be sought that enables the degree to which States are involved with a given matter to be measured. In rare instances, a substantive standard has been proposed by States. In relation to the racial problem in South Africa, Madagascar claimed that if States provide ‘diplomatic, political and military support’ to a particular State, they become a party to a dispute under Article 27 (3).¹¹⁸ At the 2949th UNSC meeting in 1990 on the occupied Arab territories, Cuba stated that those States that have ‘an intimate connection with a particular issue’ should abstain from voting in accordance with Article 27 (3).¹¹⁹

A standard proposed by Conforti and Focarelli is worth noting in this regard. They state:

The “parties to a debate” and hence the States members of the Council obligated to abstain are those States which in a given draft resolution are shown to be concerned parties addressees, either because they may benefit from it or because they may be harmed by it, and provided that their favorable or unfavorable position is different in that case from any other Member State of the United Nations and of the international community.¹²⁰

Reliance on a draft resolution in order to identify parties to a dispute in the sense of Article 27 (3) is the key to the present study. This is because the wording of a draft resolution normally reflects a situation of the relevant States’ interests and, therefore, could be used as an indicator for identifying States directly involved with a matter. Those States that have ‘an intimate connection’ with a particular matter are inevitably mentioned in a draft resolution.

That said, the above-mentioned standard still presents several problems. First, focusing only on addressees of draft resolutions is too narrow.¹²¹ States other than addressees of a draft resolution may possess particular interests in a dispute. For instance, in UNSC resolution 731 (1992) on the Lockerbie bombing case, the only particular addressee is ‘the Libyan Government’, which is urged to provide an effective response to the request made by France, the UK and the USA for the surrender of the suspects. It would be odd to argue that only Libya is a party to the dispute. By making such a request, the three States can be understood as being directly involved with the matter and, hence, must be required to abstain from voting under Article 27 (3). Second, the standard ‘their favorable or unfavorable position is different in that case from any other Member State of the United Nations and of the international community’ entails ambiguities. What criteria could one use to judge whether a certain State’s position is different from that of other members of the UN? Are such judgements about the legal rights or about the political interests of relevant States? How much of a difference in position is needed for a State to be a party to a dispute? Debates at UNSC meetings are usually so heated and antagonistic as to amplify these ambiguities. This would make the standard impracticable in reality.

Based on the consideration above, this article proposes the following formula for identifying parties to a dispute in the sense of Article 27 (3):

A dispute in the sense of the proviso in Article 27 (3) is defined as a conflict between States that are directly involved with a particular matter. States directly involved with the matter and hence obliged to abstain from voting under the proviso are those which, in a given draft resolution, are referred to by their State names.

It is important to pay attention to the wording of a draft resolution. That is, whether particular state names, such as ‘the United States’, ‘Pakistan’ or ‘Japan’, are referred to in a draft resolution is critical. This is because direct references in such a way provide a strong indication that these States have particular stakes among relevant States in a matter and are directly involved in that matter. In addition, focus should not be limited to addresses of a draft resolution. The entirety of a draft resolution, including its operative paragraphs and its preambles, is relevant in determining which States are directly involved in a particular matter and hence are parties to that dispute. Indeed, there might be cases in which such States are neither required nor recommended to do something by a draft resolution.

The principle underlying the obligatory abstention rule is nemo iudex in re sua, as was proposed by the UK in the drafting of the UN Charter.¹²² However, this principle cannot be fully maintained in the application of this rule. It is highly possible that there are UNSC members who are involved in a particular matter only indirectly and, therefore, are classified as non-parties to a dispute and are not required to abstain from voting. Involvement in this sense is a matter of degree. Such members can make a judgement on their own matters or stakes through their voting in the UNSC. Consequently, the nemo iudex in re sua principle must be inevitably compromised to some extent in the diplomatic procedure consisting not of neutral experts but of representatives of States. With this in mind, this article will now explore a case study using the present formula.

1. As discussed above, with regard to draft resolution S/2298/Rev.1 submitted in 1951 regarding Egypt’s restriction on the passage through the Suez Canal, there was a vehement controversy between Egypt and other UNSC members in terms of which States are obliged to abstain from voting in accordance with the proviso in Article 27 (3).¹²³ After this controversy, the UNSC adopted resolution 95 (1951) by eight affirmative votes with three abstentions. The resolution calls upon Egypt to terminate its restrictions. France, the Netherlands, the UK and the USA—which Egypt asserted were obliged to abstain as parties to the dispute—participated in the voting on the adoption of this resolution. As the draft resolution does not mention these four States anywhere in it,¹²⁴ they were not parties to a dispute in the sense of the proviso in Article 27 (3), and their votes did not violate the obligation to abstain thereunder. Given the explicit mentions of Egypt and Israel in the preambles and in operative paragraphs of the resolution, they would have been obliged to abstain from voting if they had been UNSC members at that time. Other States, such as the UK and France, were also influenced by Egypt’s restrictions; however, the influence on these States must be seen as more remote than its influence on Israel. It was Egypt and Israel that were directly involved in this matter.

2. UNSC resolution 98 (draft resolution S/2839) on the Kashmir problem, which was adopted at the UNSC 611th meeting in 1952, urges India and Pakistan to enter into negotiations under the auspices of the UN Representative.¹²⁵ The only States that are explicitly mentioned in the draft resolution are India and Pakistan. By being present and not voting at that meeting,¹²⁶ Pakistan clearly complied with the obligation to abstain under the proviso in Article 27 (3). No other States could have been regarded as a party to the dispute, given the largely bilateral nature of the matter.

3. The UNSC unanimously adopted resolution 731 (draft resolution S/23762) on the Lockerbie bombing. Although Libya demanded that France, the UK and the USA abstain from voting in accordance with Article 27 (3), these three States voted for the adoption of the resolution. On the ground that a preamble to the draft resolution explicitly refers to these three States as those that requested the surrender of the bombing suspects,¹²⁷ they should have abstained from the voting. It is crystal clear that there was a dispute between Libya on one hand, and France, the UK and the USA on the other. Libya’s demand was right in this respect.

4. Draft resolution S/2022/155 of 25 February 2022 deplores ‘the Russian Federation’s aggression against Ukraine in violation of Article 2 paragraph 4 of the United Nations Charter’ and decides that ‘the Russian Federation shall immediately cease its use of force against Ukraine’.¹²⁸ This draft resolution was vetoed by Russia. However, because of the explicit reference to Russia in the draft resolution, Russia should have been prevented from exercising its veto as a party to the dispute in accordance with the proviso in Article 27 (3). Ukraine would have also been obliged to abstain if it had been a UNSC member. Other Western members, such as the USA, the UK, and France, have strategic interests in this matter as members of NATO and have harshly criticized Russia’s invasion for violating the UN Charter. Indeed, a ‘disagreement on a point of law’ (Mavrommatis formula) has existed between Russia and these States. Yet, because there was no explicit reference to their names in the draft resolution, they were not a party to the dispute and, hence, not obliged to abstain from the voting.

From the above, it can be reasonably concluded that the present formula enables a proper judgement on who is a party to a dispute under the proviso in Article 27 (3). It is highly important that the application of the present formula does not lead to a nonsensical expansion of the scope of parties to a dispute and that the results of the application generally correspond with our intuitive judgements in terms of who must have the obligation to abstain from voting in Chapter VI procedures. The UNSC and its members are expected to follow this formula when applying the obligatory abstention rule. This could prevent UNSC members from prioritizing their own benefit of exercising their voting rights over the institutional benefit of securing fairness in UNSC procedures.

However, a skeptic’s challenge might be presented to this formula. Namely, is it possible for drafting States to manipulate the wording of a draft resolution for the purpose of avoiding the obligation to abstain in accordance with the proviso in Article 27 (3)? For example, is it possible for a State directly involved in a particular matter to sidestep the obligation to abstain by submitting a draft resolution that intentionally removes any explicit reference to that State? The answer is ‘no’. First, UNSC resolutions must accurately reflect the interests and the relationships between relevant States in order to make meaningful recommendations. Draft resolution S/2022/155 on Russia’s invasion of Ukraine would not make any sense if it does not contain explicit reference to both Russia and Ukraine—that is, the State that has invaded and the State that has been invaded.

Second, States drafting a UNSC draft resolution do not just seek the minimum number of affirmative votes required to ensure its adoption. Rather, they seek as many affirmative votes as possible to secure its legitimacy towards the international community. A draft resolution made with an arbitrary choice of words and sentences intended to sidestep the obligation to abstain would be unable to attract enough support from UNSC members. Drafters of a resolution have no choice but to reflect an actual political situation in a draft resolution. If resolution 731 (draft resolution S/23762) on the Lockerbie bombing case, which was unanimously adopted, had referred only to Libya but not to France, the UK, and the USA, it would have appeared very irrational and politically distorted. Therefore, it would have hardly gathered support, especially from the Global South.

5. Conclusion

This article has mainly advanced three arguments related to the obligatory abstention rule. First, although the prolonged non-application of the obligatory abstention rule has endangered doubt among scholars that the rule has fallen into desuetude, the recent call by many UN member States for adherence to the proviso in Article 27 (3) demonstrates the continuing validity of the rule. The desuetude of codified laws requires clear and sound evidence, which is lacking in the case of the obligatory abstention rule.

Second, just because a matter has been referred to as a ‘situation’ does not set aside the obligation to abstain under Article 27 (3). This is because the notion of a situation is so broad that a situation may exist in parallel with a dispute. The questions of whether a dispute exists and which States are obliged to abstain from voting must be considered separately from the question of whether a situation exists. The ICJ Advisory Opinion in the Namibia case cannot be upheld for these reasons.

Third, there has been a serious legal lacuna regarding the definition of a ‘dispute’ and the standards for determining who are parties to a dispute under the proviso in Article 27 (3), as shown by the Palestine question in 1951. This article asserts that the traditional definition of a dispute as developed by international courts must be abandoned and that those States that are referred to by their State name in a given draft resolution are obliged to abstain in accordance with the obligatory abstention rule regardless of whether the UNSC makes the prior determination that a dispute exists. As for the ongoing Russia’s invasion of Ukraine, they both are parties to the dispute and thus, Russia should have been prevented from vetoing the adoptions of the relevant draft resolutions. Although the claims of other Western allies of Ukraine have been positively opposed by Russia, these allies are not parties to a dispute in the sense of Article 27 (3).

In the current situation, under which the permanent members of the UNSC are divided on major issues and veto threats are frequently made, the obligatory abstention under the proviso in Article 27 (3) is of paramount importance for ensuring the functioning of the UNSC in the field of a peaceful settlement of disputes. Nevertheless, the nemo iudex in re sua principle, which is enshrined in the proviso, has been ignored for a long period of time, and Chapter VI procedures have been regarded only as nothing more than a preliminary stage for the Chapter VII procedures. In 1974, Bailey stated, the ‘idea that a state should not be a judge in its own cause has been largely forgotten’.¹²⁹ Now is the time for revitalizing the obligatory abstention rule, based on the formula proposed by this article. The obligatory abstention rule is even capable of preventing the use of the veto and would give Chapter VI procedures a unique place in the UN Charter. Power politics is always pervasive in UNSC procedures and would likely remain unchanged even after the revitalization of the obligatory abstention rule. However, excluding parties to a dispute from voting would lead to increased opportunities for UNSC interventions into international disputes, thus elevating the significance of this international organ that represents the interests of the international community.

Footnotes