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The Practice of Voluntary Abstentions by Permanent Members of the Security Council Under Article 27, Paragraph 3, of the Charter of the United Nations

Published online by Cambridge University Press:  28 March 2017

Constantin A. Stavropoulos
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Extract

A question which was much discussed in legal literature in the early years of the United Nations, and which has been cited as a classic example of the effect of subsequent practice upon a provision in a multilateral treaty, has recently been raised again. This concerns the interpretation of Article 27, paragraph 3, of the Charter of the United Nations, which deals with voting in the Security Council on non-procedural matters. Both Portugal and South Africa last year reserved the position of their governments regarding the validity of Security Council Eesolution 221 of April 9, 1966, in the vote on which both France and the Soviet Union abstained. This is the resolution by which the Council, acting under Chapter VII of the Charter, called for certain measures to enforce an embargo on oil and petroleum products from reaching Southern Ehodesia through the port of Beira in Mozambique, and authorized the United Kingdom to prevent by the use of force, if necessary, the arrival at Beira of vessels reasonably believed to be carrying oil destined for Rhodesia.

Type
Research Article
Information
American Journal of International Law , Volume 61 , Issue 3 , July 1967 , pp. 737 - 752
Copyright
Copyright © American Society of International Law 1967

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References

1 E.g., Hans Kelsen, , “Organization and Procedure of the Security Council,” 59 Harvard Law Review 1098–1099 (1946)Google Scholar, and The Law of the United Nations 239-244 (1950); Goodrich and Hambro, The Charter of the United Nations: Commentary and Documents 133 (1946 ed.), and 223 (1949 ed.); Koo, Wellington Jr., Voting Procedures in International Political Organizations 122–158 (1947);Google Scholar Jiménez de Aréchaga, , Voting and the Handling of Disputes in the Security Council 17–23 (1950);Google Scholar P. P. Brugière, Droit de veto: la régie de 1'unanimité des membres permanents au Conseil de Sécurité 134-141 (1952); Prancis O. Wilcox, “The Rule of Unanimity in the Security Council,“ 1946 Proceedings, American Society of International Law 55-56; Yuen-1i Liang, “The Settlement of Disputes in the Security Council: The Yalta Voting Formula,“ 24 Brit. Yr. Bk. Int. Law 357-359 (1947); Norman J. Padelford, , “The Use of the Veto,” 2 International Organization 245 (1948)Google Scholar; Yuen-1i Liang, , “Abstention and Absence of a Permanent Member in Relation to the Voting Procedure in the Security Council,” 44 A.J.I.L. 694–700 (1950)Google Scholar; Leo Gross, , “Voting in the Security Council: Abstention from Voting and Absence from Meetings,” 60 Yale Law Journal 209–229 (1951)CrossRefGoogle Scholar; Myres S. McDougal and Richard N. Gardner, “The Veto and the Charter: an Interpretation for Survival,” ibid.278-291.

2 See Tunkin, p. 747 below.

3 U.N. Doc. S/7271 (April 28, 1966) and Corr. 1 (April 29, 1966). For similar reservations by Portugal concerning Security Council Res. 232 (1966) of Dec. 16, 1966, by which the Council imposed selective sanctions on Rhodesian exports and imports, see U.N. Doc. S/7735/Rev.l (Feb. 14, 1967).

4 U.N. Doc. S/7392 (July 1, 1966). South Africa was among the states providing assistance to the U.N. Command in Korea, thus actively supporting Security Council Res. 82(1950) of June 25, 1950; 83(1950) of June 27, 1950; 84(1950) of July 7, 1950; and 85(1950) of July 31, 1950, all of which were considered adopted in the absence of a permanent member of the Security Council. See also Yuen-1i Liang, 44 A.J.I.L. 708, note 60 (1950).

5 U.N. Doc. S/EES/221 (April 9, 1966); 60 A.J.I.L. 925 (1966).

6 U.N. Doc. S/7271 (April 28, 1966) and Corr. 1 (April 29, 1966).

7 Ibid.

8 For the “Protocol of Entry into Force of the Amendments to Articles 23, 27 and 61 of the Charter of the United Nations adopted under General Assembly resolutions 1991 A and B (XVIII) of 17 December 1963,” see U.N. Doc. A/6019 (Sept. 27, 1965).

9 Prior to its amendment, Art. 27, par. 3, of the Charter provided that all decisions of the Security Council on non-procedural matters “shall be made by an affirmative vote of seven 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.“

10 e.g.,Report to the President, U. S. Dept. of State (1945), pp. 71-77; United Nations Conference on International Organization, New Zealand Dept. of External Affairs (1945), pp. 74-79; Report on the United Nations Conference on International Organization, Canada Dept. of External Affairs (1945), pp. 30-32; United Nations Conference on International Organization, Report by the Australian Delegates (1945), pp. 16-18.

11 See note 1 above.

12 The Sponsoring Governments were China, the Soviet Union, the United Kingdom and the United States.

13 11 Documents of the United Nations Conference on International Organization (UNCTO), San Francisco (1945) 707

14 Ibid.713.

15 Yuen-li Liang, 24 Brit. Yr. Bk. Int. Law 358.

16 11 ITNCIO Docs. 610-611.

17 I.L.C. Rep. 2d Pt. 17th Sess., and 18th Sess., U.N. Doe. A/6309/Bev. 1, p. 49.

18 Ibid. 52-53.

19 Ibid. 65.

20 Ibid.65-66.

21 For some instances of such acquiescence, see Tuen-li Liang, 44 A.J.I.L. 704-708 (1950). The Assembly has acted on many occasions on the basis of resolutions adopted by the Security Council on which one or more permanent members abstained, including Security Council Res. 69 (1949) of March 4, 1949; 86 (1950) of Sept. 26, 1950; 109 (1955) of Dec. 14, 1955; 166 and 167 (1961) of Oct. 25, 1961; and 176 (1962) of Oct. 4, 1962, dealing with the admission of new members; Res. 71 (1949) of July 27, 1949; and 102 and 103 (1953) of Dee. 3, 1953, dealing with the applications of non members to become parties to the Statute of the International Court of Justice. See pp. 744-745 below. The Assembly has also, in connection with peacekeeping operations in the Congo, acted on the understanding ﹛e.g.,by appropriating funds) that Security Council resolutions initiating the operation were properly adopted, although one or more permanent members of the Security Council abstained on parts or the whole of those resolutions.

22 Repertoire of the Practice of the Security Council, 1946-1951 (U.N. Doc. ST/PSCA/ 1), Ch. IV, Part III, p. 173, Case 180. For a similar position expressly supported by the Soviet Union, see ibid.,p. 175, Case 187. See also Yuen-li Liang, 44 A.J.I.L. 706 (1950), for a statement by the representative of the Soviet Union in the General Assembly on the effect of voluntary abstentions.

23 Repertoire, op. cit.note 22 above, at 173-174, Case 182. For a similar position expressly supported by the United States, see ibid.174, Case 184. See also Yuen-li Liang, 44 A.J.I.L. 705 and 707 (1950), for mention of statements by representatives of the United States in the General Assembly on the effect of voluntary abstentions.

24 Repertoire, op. cit.note 22 above, at 174, Case 183. For similar positions expressly supported by France see ibid.174-175, Cases 185 and 186, and by the United Kingdom, see ibid.,Case 185. For other statements by France and the United Kingdom in the General Assembly, see Yuen-li Liang, loo. cit.note 23 above, at 705-707, and see p. 707 for reference to a draft resolution sponsored by China, France, the United Kingdom and the United States in the Ad Hoc Political Committee of the General Assembly, which was based on the understanding that a voluntary abstention by a permanent member was not tantamount to a veto.

25 Repertoire, op. cit.note 22 above; Supp. 1952-1955 (U.N. Doc. ST/PSCA/1/ Add. 1), Ch. IV, Part III , pp. 67 and 68; Supp. 1956-1958 (U.N. Doc. ST/PSCA/1/ Add.2), Ch. I T , Part III , p. 64; and Supp. 1959-1963 (U.N. Doc. 8T/PSCA/1/Add.3), Ch. IV, Part III, pp. 95-96.

26 Opinions may, of course, vary on the classification of decisions as procedural and non-procedural, and the figures given in this paragraph are therefore subject to possible differences in this respect. Furthermore, there are many more examples where decisions failed to be adopted, with one or more of the permanent members abstaining, because they did not obtain the necessary majority. In all these cases the abstentions of the permanent members were announced as abstentions and not as vetoes. These abstentions have been described as “ hidden “ or “concealed vetoes“; see Repertoire, op. cit.note 22 above, at 175, Case 189.

27 In addition to the resolutions listed in note 28 below, this includes decisions of the Security Council of July 8, 1947; July 6, Aug. 23 and Oct. 19, 1948; March 23, 1949; Sept. 12, 1950, and April 30 and May 29, 1951. See relevant annual volumes of the Official Records of the Security Council, Resolutions and Decisions of the Security Council, for these decisions and for the resolutions listed in note 28 below.

28 For the purposes of this note, and subject to the reservations expressed in note 26 above, the following Security Council resolutions have been taken into account: Ees> 4 (1966) of April 29, 1946, 15 (1946) of Dec. 19, 1946, 17 (1947) of Feb. 10, 1947, 18 (1947) of Feb. 13, 1947, 19 (1947) of Feb. 27, 1947, 21 (1947) of April 2, 1947, 22 (1947) of April 9, 1947, 23 (1947) of April 18, 1947, 27 (1947) of Aug. 1, 1947, 30 and 31 (1947) of Aug. 25, 1947, 32 (1947) of Aug. 26, 1947, 35 (1947) of Oct. 30, 1947, 36 (1947) of Nov. 1, 1947, 38 (1948) of Jan. 17, 1948, 39 (1948) of Jan. 20, 1948, 40 and 41 (1948) of Feb. 28, 1948, 42 (1948) of March 5, 1948, 44 (1948) of April 1, 1948, 46 (1948) of April 17, 1948, 47 (1948) of April 21, 1948, 48 (1948) of April 23, 1948, 49 (1948) of May 22, 1948, 50 (1948) of May 29, 1948, 51 (1948) of June 3, 1948, 52 (1948) of June 22, 1948, 53 (1948) of July 7, 1948, 54 (1948) of July 15, 1948, 55 (1948) of July 29, 1948, 56 (1948) of Aug. 19, 1948, 61 (1948) of Nov. 4, 1948, 62 (1948) of Nov. 16, 1948, 63 (1948) of Dec. 24, 1948, 64 and 65 (1948) of Dec. 28, 1948, 66 (1948) of Dec. 29, 1948, 67 (1949) of Jan. 28, 1949, 69 (1949) of March 4, 1949, 70 (1949) of March 7, 1949, 71 (1949) of July 27, 1949, 73 (1949) of Aug. 11, 1949, 86 (1950) of Sept. 26, 1950, 89 (1950) of Nov. 17, 1950, 91 (1951) of March 30, 1951, 92 (1951) of May 8, 1951, 93 (1951) of May 18, 1951, 95 (1951) of Sept. 1, 1951, 96 (1951) of Nov. 10, 1951, 98 (1952) of Dec. 23, 1952, 101 (1953) of Nov. 24, 1953, 102 and 103 (1953) of Dec. 3, 1953, 109 (1955) of Dee. 14, 1955, 122 (1957) of Jan. 24, 1957, 123 (1957) of Feb. 21, 1957, 126 (1957) of Dec. 2, 1957, 128 (1958) of June 11, 1958, 143 (1960) of July 14, 1960, 146 (1960) of Aug. 9, 1960, 161 (1961) of Feb. 21, 1961, 162 (1961) of April 11, 1961, 166 and 167 (1961) of Oct. 25, 1961, 169 (1961) of Nov. 24, 1961, 171 (1962) of April 9, 1962, 176 (1962) of Oct. 4, 1962, 179 (1963) of June 11, 1963, 180 (1963) of July 31, 1963, 181 (1963) of Aug. 7, 1963, 183 (1963) of Dec. 11, 1963, 186 (1964) of March 4, 1964, 188 (1964) of April 9, 1964, 189 (1964) of June 4, 1964, 190 (1964) of June 9, 1964, 191 (1964) of June 18, 1964, 193 (1964) of Aug. 9, 1964, 199 (1964) of Dec. 30, 1964, 202 (1965) of May 6, 1965, 205 (1965) of May 22, 1965, 215 (1965) of Nov. 5, 1965, 216 (1965) of Nov. 12, 1965, 217 (1965) of Nov. 20, 1965, 218 (1965) of Nov. 23, 1965, 221 (1966) of April 9, 1966, 226 (1966) of Oct. 14, 1966, 232 (1966) of Dee. 16, 1966. See note 27 above.

29 By its Res. 109 of Dec. 14, 1955, the Security Council recommended to the General Assembly the admission to the United Nations of Albania, Austria, Bulgaria, Cambodia, Ceylon, Finland, Ireland, Italy, Jordan, Hungary, Laos, Libya, Nepal, Portugal, Rumania and Spain. Before this resolution was put to a vote as a whole a separate vote was held on each applicant at the 705th meeting of the Council. The separate votes on Austria, Cambodia, Ceylon, Finland, Ireland, Italy, Jordan, Laos, Libya, Nepal, Portugal and Spain were all unanimous. Two permanent members abstained on the Seseparate votes on Albania, Bulgaria, Hungary and Rumania. When the resolution was put to a vote as a whole, two permanent members abstained which, if such abstentions were tantamount to vetoes, would have nullified the effect of the separate unanimous votes and would have prevented the adoption of the resolution as such. See Repertoire Supplement 1952-1955, op. cit.note 25 above. The admission of Algeria, Indonesia, Israel, Mongolia and Mauritania was recommended by the Security Council by separate resolutions, respectively as follows: 176 (1962) of Oct. 4, 1962 (1020th meeting); 86 (1950) of Sept. 26, 1950 (503rd meeting) ; 69 (1949) of March 4,1949 (414th meeting); and 166 and 167 (1961) of Oct. 25, 1961 (971st meeting). A permanent member abstained in the vote on each of these resolutions. See Repertoire and Supplement 1959- 1963, op. cit.notes 22 and 25 above.

30 Res. 71 (1949) of July 27, 1949, adopted at the 432nd meeting of the Security Council (Liechtenstein) and Res. 103 (1953) of Dec. 3, 1953, adopted at the 645th meeting of the Security Council (San Marino). See Repertoire, op. cit.note 22 above, and Supplement 1952-1955, note 25 above.

31 Res. 143 (1960) of July 14, 1960, adopted at the 873rd meeting of the Security Council. See Repertoire Supplement 1959-1963, op. cit.note 25 above.

32 Operative par. 4 of Res. 186 (1964) of March 4, 1964, recommending “the creation, with the consent of the Government of Cyprus, of a United Nations Peace- Keeping Force in Cyprus… . “ See U.N. Doe. S/INF/19/Rev. 1, p. 3.

33 Some of the items in connection with which one or more resolutions of the Security Council have been adopted with one or more permanent members abstaining are the following: Spanish Question, Greek Frontier Incidents Question, General Regulation and Reduction of Armaments, Corfu Channel Question, Trusteeship Agreement for the Former Japanese Islands, Reports of the Commission for Conventional Armaments, Indonesian Question, India-Pakistan Question, Palestine Question, Reports of the Atomic Energy Commission, Admission of new Members to the United Nations, Applications of non-members to become parties to the Statute of the International Court of Justice, Report of the Security Council to the General Assembly, Complaint by Lebanon, Situation in the Republic of the Congo, Reports by the Secretary General concerning Yemen, the situation in Territories in Africa under Portuguese Administration, Question of race conflict in South Africa, the Cyprus Question, Complaint by Yemen, Complaint concerning acts of aggression against the territory and civilian population of Cambodia, Question relating to Southern Rhodesia, Question relating to the Dominican Republic. For listing of the decisions concerned, see Repertoire, op. cit.note 22 above, and Supplements thereto, op. cit.note 25 above.

34 See pp. 743-744 above.

35 See Repertoire, op. cit.note 22 above. See also Gross, loo. cit.note 1 above, at 217 to 224, summarizing, inter alia,discussion in the General Assembly in 1949 on the one occasion, in connection with the admission of Israel, when a number of representatives expressed some doubt concerning the validity of a resolution of the Council on which a permanent member abstained.

36 The Repertoire and Supplements, op. cit.notes 22 and 25 above, do not list any discussion of the effects of a voluntary abstention by a permanent member after 1949.

37 General Assembly Res. 40 (I) of Dee. 13, 1946. When this and other recommendations contained in the resolution were discussed in the Security Council at its 197th meeting on Aug. 27, 1947, the President (Syria) remarked that “almost the only result of these recommendations of the General Assembly … has been that there have been abstentions in some cases, which have proved helpful.” See Repertoire, op. cit. note 22 above, Case 184, p. 174. See also note 21 above.

38 G. I. Tunkin, Droit International Public 94-95 (1965).

39 Jiménez de Aréchaga, op. cit.note 1 above, at 20-21.

40 See p. 738 above.

41 11 TJNCIO Does. 492. In the text of this amendment, and in the quotations from the San Francisco records which follow, the existing numbering of Charter chapters and articles has been substituted in brackets for the corresponding number of the Dumbarton Oaks proposals.

42 Ibid. 309.

43 See p. 740 above.

44 11 TJNCIO Docs. 711-712.

45 Ibid.494.

46 Ibid.518.

47 Resolutions, etc., loc. cit.note 27 above, 1948, pp. 22-23.

48 See pp. 737-738 above.

49 U.N. Doc. S/EE8/232 (Dec. 16, 1966); 61 A.J.I.L. 654 (1967).

50 See Repertoire, op. cit.note 22 above, p. 430, Case 4, and p. 433, Cases 6 and 7.

51 U.N. Docs. S/P.V.1277 (April 9, 1966) and S/P.V.1340 (Dec. 16, 1966).

52 See pp. 738-739 above.

53 See p. 750 above. Some other examples are Res. 215 (1965), 216 (1965), 217 (1965) and 218 (1965) of Nov. 5, 12, 20 and 23, 1965.

54 See pp. 737-738 above.

55 See U.N. General Assembly, 18th Sess., Official Records, Special Political Committee, 417th to 429th meetings; ibid.,Plenary Meetings, 1285th meeting, and ibid., Annexes, agenda items 81, 82 and 12.

56 Ibid.,Annexes, TJ.N. Doc. A/5520.

57 E.g.,Security Council Res. 15 (1946) of Dec. 19, 1946, 27 and 30 (1947) of Aug. 1 and 25, 1947, 47 (1948) of April 21, 1948, 51 (1948) of June 3, 1948, 63, 64, and 66 (1948) of Dec. 24, 28 and 29, 1948, 67 (1949) of Jan. 28, 1949, 95 (1951) of Sept. 1, 1951, 109 (1955) of Dec. 14, 1955, 143 (1960) of July 14, 1960, 161 (1961) of Feb. 21, 1961, 169 (1961) of Nov. 24, 1961, 180 (1963) of July 31, 1963, 181 (1963) of Aug. 7, 1963, 183 (1963) of Dee. 11, 1963, 186 (1964) of March 4, 1964, 188 (1964) of April 9, 1964, 190 and 191 (1964) of June 9 and 18, 1964, 199 (1964) of Dee. 30, 1964, 202 (1965) of May 6, 1965, 218 (1965) of Nov. 23, 1965, 221 (1966) of April 9, 1966, 226 (1966) of Oct. 14, 1966, and 232 (1966) of Dee. 16, 1966.

58 See p. 744 above.

59 U.N. Doe. S/EES/202 (1965) (May 6, 1965). This resolution dealt with the question of Southern Rhodesia.