The Curious Article 27(3) of the UN Charter

by Kevin Jon Heller

Our friend John Boonstra at UN Dispatch calls attention to a little-used provision of the UN Charter that requires members of the Security Council to abstain from voting on substantive matters when they are a party to a dispute.  Here is the text of Article 27(3):

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 the dispute shall abstain from voting.

John discusses the potential impact of Article 27(3) on a draft resolution circulated by France on Monday that calls for a cessation of hostilities, a return to the August 7 status quo, and a reaffirmation of Georgian territorial integrity.  He notes, quite rightly, that the odds are against the Article being invoked, given that it has not been used since the early days of the UN.  (The most recent example being, according to Security Council Report, Argentina’s abstention from a 1960 vote on whether Israel’s capture of Eichmann on Argentine territory violated its sovereignty.)

It’s a fascinating issue — but my interest in Article 27(3) is a bit different.  By its terms, the Article applies only to resolutions that invoke Chapter VI of the UN Charter, “Pacific Settlement of Disputes.” It does not apply to resolutions that invoke Chapter VII, “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression.”  That limitation seems to render Article 27(3)’s abstention provision essentially worthless: Chapter VI authorizes the Security Council to “call upon the parties to settle their dispute” through negotiation, mediation, arbitration, and the like, but seems to require the Council to act under Chapter VII if the parties fail to do so.  Abstaining on a Chapter VI resolution would thus appear to have no real cost for a party to the dispute, which makes me wonder why we have not seen an Article 27(3) abstention in the past 48 years.

I wade into this area with great trepidation — my knowledge of the esoterica of the UN Charter takes up less space than an angel dancing on the head of a pin.  Anyone out there know more about Article 27(3)?

http://opiniojuris.org/2008/08/14/the-curious-article-273-of-the-un-charter/

2 Responses

  1. The most important thing about Article 27(3) is, at least for me, the question whether it binds the P-5 or not. The doctrine seems to agree that they should comply with this obligation as well, but reckon they simply don’t. This seems to me to be one of the weakest points of the UN Charter, which simply states that the P-5 are above the general law.

  2. Dear Mr Heller,
    The decisive point is who decides on whether Article 27 (3) applies, and whether the veto applies to that decision. The answer to question one is obvious, namely the Security Council itself (in the absence of any other option).
    The answer to question 2 is, that in the practice of the UN, the veto power applies to that decision, too. That is why the veto power in Article 27 (2) is also called “the double veto”. There are precedents for the chair (in August, Belgium) to declare the matter obvious and not subject to a vote, or to first have a vote and then decide whether the question is procedural, but since the early 60s informal agreement has prevented the question from coming up (see Simma ed., Charter, Art. 27 paras. 35 et seq.).
    Thus, I would not maintain that a Chapter VI resolution would not hurt Moscow because it is not binding – this also applies to many resolutions that have been vetoed nevertheless. Rather, Moscow can prevent the adoption of such a resolution by claiming that it does not fall under Article 27 (3) for some reason or the other, and thus prevent the resolution from being brought to a vote. The other permanent members certainly have no interest in raising the question anew.
    Andreas Paulus, Goettingen

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.