Published by The Lawfare Institute
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Tensions between Russia and Ukraine have escalated significantly in the past month, with reports of Russian troop buildups and recent U.S. and NATO deployments to the area. Speaking in Berlin in late January, U.S. Secretary of State Antony Blinken cautioned that Russia was “poised” to take aggressive military action and warned that Russia may stage a provocation as a pretense for military intervention. Russian representatives have denied Blinken’s allegations and accused the United States of fomenting a crisis. With tensions mounting, Russia’s intentions—and whether it will mount a large-scale attack—remain unclear.
At a United Nations Security Council meeting on Jan. 31, Ukraine “urged” council members to take action under their Chapter VI powers to deescalate tensions through peaceful means. However, as a permanent, or P5, member of the Security Council, Russia can veto any substantive council resolution and would presumably block any action taken in support of Ukraine. This veto power is ostensibly constrained under Article 27(3) of the U.N. Charter, which obliges parties to a dispute to abstain from voting.
But the use of Article 27(3)’s abstention provision has been sparing and inconsistent. In recent decades, the Article 27(3) abstention has been obligatory in theory but voluntary in practice. Major players in the U.N. have been unwilling to pressure states to fulfill their obligation to abstain, with mostly smaller states such as Liechtenstein and New Zealand openly protesting U.N. member states’ failures to do so.
On the issue of a possible Russian abstention, P5 members have been silent. In late January, U.S. Ambassador to the United Nations Linda Thomas-Greenfield declined to comment on a possible obligatory Russian abstention when asked about the matter in a press conference. Thomas-Greenfield seemed to accept the likelihood of Russia’s nonabstention; she instead focused her answer on the U.S. approach at the Security Council in light of such a veto.
As the Security Council deliberates possible action on Ukraine, the question of abstention nonetheless looms large: Does the U.N. Charter require Russia to abstain on a resolution concerning Ukraine and, if so, could the United States effectively pressure it to do so?
The Security Council’s Way Forward
In responding to potential threats to international peace and security, such as events unfolding in Ukraine, the Security Council may take action under Chapter VI or VII of the U.N. Charter.
Chapter VI of the U.N. Charter is reserved for “pacific settlements of disputes.” Article 33 sets out the Security Council’s authority to “call on states to resolve disputes” by peaceful means such as “negotiation, enquiry, mediation, conciliation, [and] arbitration.” Articles 34 and 35 allow for states to bring disputes to the Security Council and for the council to initiate an investigation. Articles 36–38 give the Security Council additional powers to recommend specific procedures of settlement at any point in a dispute.
Chapter VII of the U.N. Charter provides the Security Council with its most potent authorities. Under Article 41, the Security Council may call upon member states to sever diplomatic ties or interrupt economic relations or communications. If the Security Council finds those measures inadequate, Article 42 authorizes the Security Council to escalate to military action to “maintain or restore international peace and security.” Examples of the Security Council’s previous Chapter VII invocations include the 1977 imposition of an arms embargo against South Africa in Resolution 418, the 1999 establishment of a peacekeeping force in Sierra Leone in Resolution 1270, and the 2011 authorization to use force in Libya in Resolution 1973.
What Article 27(3) Requires
Article 27, Paragraph 3, implicitly establishes the veto power of the Security Council’s five permanent members—China, France, Russia, the United Kingdom and the United States. The relevant provision stipulates that nonprocedural decisions “shall be made by an affirmative vote of nine members including the concurring votes of the permanent members.”
Several campaigns by governments or civil society groups aim to constrain the use of the P5 veto. These campaigns include the French-Mexican Initiative and the Accountability, Coherence and Transparency (ACT) Group Code of Conduct, which calls on Security Council members to not dissent on credible draft resolutions intended to halt war crimes, genocide or crimes against humanity. However, with the initiatives couched in voluntary language and with no agreement on the measures from the most frequent veto-users (Russia, the United States and China), the principles advanced in the initiatives remain aspirational.
But another provision in Article 27(3) of the U.N. Charter requires states that are “party to a dispute” to abstain from voting in decisions under Chapter VI. The abstention obligation of Article 27(3) applies only to the Security Council’s Chapter VI “pacific settlement of disputes” and not to the more coercive means authorized in Chapter VII.
On its face, the provision’s language is ambiguous as to whether a vote in which a P5 member abstains can still pass the council, given that Article 27(3) requires the “concurring votes of [all] the permanent members.” Legal scholars had historically disagreed about whether the wording thus makes a P5 abstention tantamount to a veto. However, the International Court of Justice (ICJ) ruled in Namibia in 1971 that Security Council members “have consistently and uniformly interpreted” voluntary abstention by a permanent member as not barring the adoption of resolutions. It is now accepted that a resolution may enter into force even with the voluntary abstention of a permanent member.
To Abstain or Not to Abstain
Members of the Security Council have only rarely invoked the abstention provision of Article 27(3). Some scholars and observers disagree about how many times 27(3) has been invoked throughout the council’s history, but estimates range from five to 10 cases from 1946 to 1960.
The first five years of the U.N. saw eight obligatory abstentions and debate regarding obligatory abstentions on another five occasions. According to Security Council Report, the first abstention occurred in 1946, when France and the United Kingdom declined to vote on whether to call for the removal of foreign troops from Syria and Lebanon, implicitly invoking Article 27(3). Subsequently, in 1947, the United Kingdom abstained on resolutions concerning two further issues with which it was involved: the Corfu Channel Question and the Egyptian Question. In 1950, Egypt abstained from a vote on the Palestine Question, Resolution 89, citing 27(3). India and Pakistan abstained from every resolution concerning the two countries while they sat on the Council in 1950-51 and 1952-53, respectively.
The most recent abstention made with reference to Article 27(3) occurred in 1960 when Argentina used the provision to explain its nonparticipation in Resolution 138 on the Eichmann Question, which concerned Israel’s capture of a Nazi war criminal in Argentina to stand trial in Israel. In 1978, the United States abstained from a vote condemning its invitation of a Security Council-sanctioned member of the Southern Rhodesian regime into its territory “in the spirit of” 27(3). Some scholars have interpreted this abstention to reflect the fact that the United States’ noncompliance with the sanctions regime was a “situation, rather than a dispute,” and so the binding provision of 27(3) did not apply.
More frequently, Security Council members have declined to comply with Article 27’s abstention obligation. Violations of Article 27(3) date back to the early years of the U.N., with the first likely violation coming in October 1948. In that instance, the Security Council voted on a matter relating to the administration of occupied Berlin. France, the Soviet Union, the United Kingdom and the United States all participated in the vote—with the Soviet Union exercising its veto—despite the fact that those very states were occupying Berlin at the time.
Three instances of Soviet and Russian vetoes of Security Council resolutions concerning their own actions are especially notable:
- In 1983, in a particularly “notorious” violation of Article 27(3), the Soviet Union participated in, and vetoed, a vote on a resolution calling for investigations into the downing of Korean Air Lines Flight 007 in Soviet airspace.
- In 2009, Russia participated in a Chapter VI vote on Resolution 1866, which extended the mandate of the United Nations Observer Mission in Georgia. Although the resolution concerned compliance with a cease-fire agreement between Georgia and Russian-backed forces in Abkhazia, Russia did not exercise its veto. In another vote after the extension expired several months later, Russia participated again and vetoed the resolution, bringing an end to the observer mission.
- In 2014, the Security Council considered a resolution condemning Russia’s annexation of the Ukrainian peninsula of Crimea. Russia did not abstain from voting and struck down the resolution by veto. Consistent with a decades-long pattern of ignoring the obligatory abstention provision of the charter, no member of the Security Council raised the issue of Russia’s participation in the vote. However, after Ukraine began its Security Council term in 2016, the Ukrainian delegation expressed, “It is a disgrace that paragraph 3 of Article 27 of the Charter—that a party to a dispute shall abstain from voting—continues to be blatantly ignored. It is imperative that clear proceedings be introduced for operationalizing and properly implementing this Article.”
Some states and scholars have asked whether the subsequent state practice of council members has changed the meaning of Article 27(3) as a matter of binding treaty interpretation. In a 1976 debate over a resolution on France’s actions in the French overseas department Mayotte, the French representative argued that 27(3)’s abstention provision was not binding, stating that many states had previously declined to abstain without reproach. After the French remarks, scholars have questioned whether consistent noncompliance has weakened the obligatory nature of 27(3), under a principle of treaty interpretation that allows “subsequent practice … which establishes the agreement of the parties” to modify the meaning of a text. However, continued statements by Security Council members appealing to mandatory abstentions, as well as the ICJ’s silence on the issue of Article 27(3) noncompliance in Namibia, leave the legal status of the abstention obligation ambiguous.
Disputes and Situations
Debates over the rising tensions in Ukraine, and possible Security Council action on the matter, also implicate a separate issue of Council procedure: the distinction between “disputes” and “situations.” Because Article 27(3) only requires “parties to a dispute” to abstain, the classification of the circumstances in Ukraine as a “dispute” or a “situation” is determinative of whether an obligatory abstention is in play. As Andreas Zimmermann notes in Bruno Simma’s “The Charter of the United Nations: A Commentary,” “the notion of ‘dispute’ forms a core element of Chapter VI of the Charter” and is relevant not only to Article 27(3) but to Articles 32–38 as well.
What distinguishes a dispute from a situation is not conclusively determined. According to Zimmermann, the existence of a dispute between parties is “a matter for objective determination,” but others have tried to spell out the elements. The 1948 Interim Committee of the U.N. General Assembly defined “dispute” based on two elements. First, a dispute is a case where a state breaches its international obligations, endangers or is likely to endanger international peace and security, or takes actions demonstrating preparation to commit a breach of international obligations or endanger the maintenance of international peace and security. Second, in a dispute, the state or states that are the subject of allegations “contest, or do not admit, the facts alleged or inferences to be drawn from such allegations.”
The ICJ also weighed in on this distinction in Namibia, in which it relies on the subjective framing of a matter instead of the objective definition of a dispute. In Namibia, South Africa claimed that a Security Council resolution was invalid. South Africa argued both that its delegation should have been invited to discussions as a nonmember “party to the dispute” under Article 32 and also that council members voted who should have abstained as “parties to the dispute” under Article 27(3). The ICJ, however, ruled that the Namibia Question was not a dispute but rather a situation, because the question was “placed on the agenda of the Council as a situation” and South African representatives failed to “draw the Council’s attention to the necessity in its eyes of treating it as a dispute.” In contrast to the Interim Committee’s objective definition of a dispute, the Namibia court seemed to indicate that the distinction is not always substantive and could be determined by the Security Council’s characterization.
Based on the Interim Committee’s definition (and, indeed, on Zimmermann’s framework), Russia’s military buildup may almost certainly qualify as a dispute. On Jan. 31, a member of the U.S. delegation argued that “the Russian military build-up along Ukraine’s borders constitutes a threat to international peace and security.” The Russian delegation opposed holding the meeting altogether, claiming that “positioning troops within its territory is a domestic matter, not a threat to global stability.” The statements of the U.S. and Russian delegations indicate a disagreement about core legal and factual premises of the events in Ukraine.
However, even if the Ukraine crisis meets the definition of a dispute, the Namibia precedent indicates that the Security Council’s framing of the matter may be determinative in practice. In fact, in the early years of the Security Council, “some states began to avoid characterizing a matter as a ‘dispute,’ lest they create an expectation that certain Council members would then be required to abstain from voting.”
Thus far, Security Council members have not consistently referred to the matter of Russian military buildup as either a dispute or a situation. The summary record of the Jan. 31 emergency meeting regarding Ukraine records that delegations from the United States, Russia, China, and France, among others, refer to the “situation” in Ukraine. Fewer delegations used the term “dispute,” among them Kenya. Mexico and the United Arab Emirates used both terms. The Ukrainian delegation urged the Security Council to “investigate any situation which might lead to international friction or give rise to a dispute.” If the council drafts a resolution on Ukraine, explicitly using the term “dispute”—as it did in a 2014 draft resolution regarding Russia’s impending annexation of Crimea—that would strengthen the case for the applicability of the obligatory abstention provision.
Who Makes the Call?
Even if the United States, or another Security Council member, were to invoke Article 27(3) in an attempt to force Russia’s abstention, the procedure of how the council would determine whether the obligation applies is not clear. Historical precedent from prior abstentions and attempted invocations of 27(3) does not point to a consistent path. Although the president of the Security Council has ruled on the application of Article 27(3), in at least two instances the Security Council has raised the possibility of voting on whether the obligatory abstention provision applied to particular instances. In other cases, the issue of applying 27(3) has not been subject to any official determination.
Even in the early years of the Security Council, when parties more consistently abided by the abstention obligation of Article 27(3), members “preferred to refrain from entering into constitutional questions arising in connexion (sic) with Article 27(3) by reason of their implications in connexion (sic) with the application of other Articles of the Charter.” If the issue of 27(3)’s binding nature came before the Security Council in 2022, one possible way to resolve the dispute would be to hold a council vote on it. But the council would first have to decide whether such a vote would be substantive (that is, subject to a veto) or procedural. Historical precedent is not promising on the issue of escaping the cycle of votes: At a 1946 meeting on the Syrian and Lebanese Question, members decided not to vote to determine whether a vote characterizing a matter as a dispute or a situation would be procedural. It is possible, then, that all roads lead to a veto.
The few instances in which members have disagreed about the applicability of the Article 27(3) obligatory abstention do not point to consistent procedures:
- In 1982, in a meeting discussing the Falkland Islands, the Panamanian representative requested that the president of the Security Council rule on whether a draft resolution fell under Chapter VI or Chapter VII power and whether “parties to the dispute” must abstain. No vote took place once the British representative voiced his opinion that the context of the resolution made it a Chapter VII affair (and thus his own abstention was not required), seemingly convincing the president.
- In 1992, a resolution condemning Libya’s role in the bombing of civilian airliners passed with France, the United Kingdom, and the United States participating, despite Libya’s earlier contention that those states must all abstain as “parties to the dispute.” The Security Council’s then-president, the British representative, did not hold a formal ruling on the matter but later expressed that the council had not been “dealing with a dispute.”
The Biden Administration’s Approach
The Biden administration has expressed concern about Russia’s military buildup on the Ukrainian border and willingness to use force in defense of Ukraine’s territorial integrity. In a Jan. 19 statement, Press Secretary Jen Psaki pledged: “If any Russian military forces move across the Ukrainian border, that’s a renewed invasion, and it will be met with a swift, severe, and united response from the United States and our Allies.”
For now, however, the administration appears to remain committed to diplomatic means. In remarks on Jan. 31, President Biden pointed to the Security Council as a venue “for the world to speak out in one voice: rejecting the use of force, calling for military de-escalation, supporting diplomacy as the best path forward, and demanding accountability from every member state to refrain from military aggression against its neighbors.”
As the United States pursues diplomacy with Russia, working through the Security Council may lend additional legitimacy to any subsequent actions the U.S. takes. A Chapter VI resolution could condemn Russia’s incursions, urge the withdrawal of Russian troops, or take other noncoercive measures to deescalate tensions.
If the Biden administration elects to use the Security Council’s Chapter VI authority to pressure Russia, the U.S. representative, in conjunction with other members of the council, could urge Russia to abide by the abstention provision of Article 27(3). Russia would likely exercise its veto if it participated in a vote on a critical resolution related to Ukraine, meaning that a Russian abstention probably would be necessary for such a resolution to pass.
Still, much remains unknown. Even a Russian abstention on a Chapter VI resolution may not guarantee its passage: China joined with Russia in the Jan. 31 meeting as the only two dissenters in a procedural vote against holding an open meeting on Ukraine. Like Russia, China can veto nonprocedural resolutions as a permanent Security Council member and may do so in a vote related to Ukraine. The recent joint statement issued after a meeting between President Vladimir Putin and President Xi Jinping could indicate China’s willingness to intervene on Russia’s behalf. In the statement, the leaders reaffirmed their commitment to “oppose interference by external forces in their internal affairs” and “stand against attempts by external forces to undermine security and stability in their common adjacent regions.”
As Ambassador Linda Thomas-Greenfield pursues diplomacy with Russia, the U.N. Charter’s abstention provision is unlikely to be the deciding factor as tensions mount. Decades of state practice have undermined the potency of obligatory abstention, procedures for determining the application of the abstention provision are ambiguous, and the United States may not be particularly well positioned to defend the abstention provision.
Editor's note: A previous version of this piece had stated that "the president of the Security Council and a vote of Security Council members have decided whether the obligatory abstention provision applied to particular instances." It has been corrected to reflect the fact that a vote never actually occurred in those instances.