April 2014 Monthly Forecast

Posted 31 March 2014
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In Hindsight: Obligatory Abstentions

Article 27(3) of the UN Charter not only enshrines the veto power of permanent members, but also institutes a limitation of this power through the principle of obligatory abstentions. In providing that “in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting”, the Charter seeks to ensure that a Council member “should not be allowed to be party, judge and jury at the same time” (S/PV.4753).

Although obligatory abstentions are a compromise, slightly tempering the scope of the veto, they apply in equal measure to permanent and non-permanent members: any member of the Security Council may be required to abstain from voting on a decision on which it is a party to the dispute. This, however, only applies under all of the following conditions: the decision to be voted is not procedural; the decision falls under Chapter VI or Article 52 (3); there is a dispute; and a Council member is a party to the dispute. Obligatory abstentions do not affect the veto of Chapter VII decisions.

The practice of the Security Council, and its members, in terms of raising and complying with Article 27(3) abstentions, has been inconsistent since 1946, and basically inexistent since 17 April 2000, the last time the issue was raised by a member state to no effect in the Council (S/PV.4128). With the exception of the UK in 1947, permanent members have never shown an interest in raising the matter, and non-permanent members have only done so sporadically.

As early as 28 January 1946, there were some attempts to test the scope of Article 27(3) abstentions. In subsequent cases, however, Council members seemed interested in avoiding any ruling by the President of the Security Council on the applicability of obligatory abstentions. Before voting on two draft resolutions on the Greek Question, on 4 February 1946, for example, the Netherlands asked whether the parties to the dispute shall vote in the matter, raising the questions of whether there was a dispute, whether the proposal was procedural, and whether the decision to be taken was under Chapter VI or VII (S/PV.7). The draft resolutions were eventually withdrawn in favour of a statement by the President of the Council summarising the proceedings (S/PV.8 and 10).

Just days later, on 14 and 16 February 1946, France and the UK objected to a ruling by the President that a dispute existed between Lebanon and Syria on the one hand and France and the UK on the other hand, adding that they would abstain from voting, “without prejudice to the question whether a dispute exists.” France also indicated that it had been its intention “to set the example of not participating” (S/PV.19 and 23).

The notion of “party” itself was discussed on several occasions, including the idea of “judge and party” (S/PV.553 and S/PV.555) as well as whether Article 27(3) abstentions should apply to states giving substantial diplomatic, political and military support to another state (S/PV.1801), or to any state with “intimate connection with a particular issue” (S/PV.2949). It also became clear that the question of Article 27(3) abstentions had to be raised before a decision is voted on (S/PV.303 and S/PV.1888).

Obligatory abstentions are rare. There have been only six Council members that have abstained from voting in the Council, or else cast an abstention, explicitly or implicitly acknowledging Article 27(3). In addition to the Lebanon and Syria case mentioned above, in which France and the UK abstained from voting, the UK abstained from voting in the following cases: twice on draft resolutions on the Corfu Channel Question in 1947 (S/PV.122 and S/PV.127) and eleven times on the Egyptian Question, likewise in 1947, on three draft resolutions and their respective amendments (S/PV.198, S/PV.200 and S/PV.201). Egypt abstained from voting once on the Palestine Question in 1950, explicitly citing Article 27(3) despite the “lack of precedents” (S/PV.524). Argentina also explicitly referred to Article 27(3) to explain its non-participation in the adoption of resolution 138 (1960) on the Eichmann Question (S/PV.868).

The India-Pakistan Question remains a unique case in which the two parties concerned abstained from voting on every relevant resolution and decision considered while they were on the Security Council in 1950-1951 (India) and 1952-1953 (Pakistan). India did so six times (S/PV.470, S/PV.471, S/PV.539, S/PV.543, S/PV.548 and S/PV.566) while Pakistan did so once (S/PV.611). (Pakistan participated in one decision taken without a vote on this issue on 31 January 1952 [S/PV.572]).

The consistency and reciprocity of the two parties constitutes a unique case of Article 27(3) abstentions being strictly applied by the relevant Council members. This case contrasts with the otherwise generalised indiscipline in abiding by the terms of Article 27(3) abstentions, either by the parties themselves or by other Council members in demanding that a party abstain from voting.

As the last Article 27(3) abstention dates back to 23 June 1960, and the most recent reference to the spirit of the provision in a Council meeting dates back to 13 May 2003 (S/PV.4753), it seems that Council members have little appetite to revive this restriction. In practical terms, disregard by parties to a dispute that are non-permanent members has limited effects, as the adoption of a decision cannot be prevented if it enjoys nine affirmative votes. In the case of permanent members, however, if the other Council members forego Article 27(3) when applicable, nothing stands in the way of the permanent member to veto a decision under Chapter VI on a dispute to which it is a party.

Negligence in the application of Article 27(3) abstentions risks not only reducing the provision to desuetude, but also enlarging the scope for the use of the veto.

The recent veto by Russia on a draft resolution under Chapter VI on the situation in Ukraine without discussion on Article 27(3) seems to confirm that Council members in general do not see any compelling interest in bringing the provision back to life (S/PV.7138). Obligatory abstentions seem to have vanished under a tacit agreement.