Chapter 6:   VOTING

Section 9:   Abstentions

 

Voting on resolution 2504 (2020), on Syrian humanitarian access, draws attention to the Charter requirement of “the concurring votes of the permanent members”

 

On 10 January 2020, the Security Council adopted a compromise resolution extending authorization of two crossing points for the delivery of humanitarian aid into Syria.  The voting pattern was an unusual one.  Albeit for different reasons, abstentions were registered by four permanent members:  China, the Russian Federation, the United Kingdom, and the United States.  France was the only P5 to join all ten elected Council members in voting affirmatively.

 

This was the first time in the history of the Security Council that these particular P5 Council members abstained together.  And it was only the fourth time that four permanent members abstained on a draft resolution which went on to be adopted.  The last previous case occurred as long ago as 1973.[1]

 

The fact that resolution 2504 (2020) was adopted with the affirmative vote of only one permanent member drew attention to the wording of Article 27(3) of the Charter, which sets out the voting requirements for adopting Security Council resolutions on substantive matters (that is, matters which are not considered procedural).  Paragraph 3 reads:

 

“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.” (our emphasis)

 

After the vote on resolution 2504 (2020), some observers pondered whether, had France also abstained, the resolution might not have been considered adopted, given that, in that hypothetical scenario, there would not have been a single “concurring vote” by a permanent member.  However, based on past practice, as well as the 1971 Advisory Opinion on Namibia by the International Court of Justice, it is clear that absent a veto, a resolution will be deemed adopted if it attains a sufficient number of votes in favour by other Council members, even without a single affirmative vote by a permanent member. 

 

Numerically, prior to the Council’s enlargement from eleven to fifteen members, a resolution could not have been adopted without a vote in favour by at least one P5.  After enlargement, however, a case did occur of a draft resolution being adopted without a single affirmative vote by a permanent member.  On 15 December 1973, a draft resolution on a proposed conference on the Middle East received ten votes in favour.  Although France, the Soviet Union, the United Kingdom, and the United States abstained, and China did not participate, it was considered adopted as resolution 344 (1973).[2]

 

In the book (pages 339-340). we note that at the San Francisco Conference, the countries which would become the permanent members gave the impression that Article 27(3) should be interpreted to mean that substantive decisions would require affirmative votes by all of them.   And this was the interpretation given to Article 27(3) by some legal scholars writing soon after the Charter entered into force.[3] 

 

However, in private discussions with each other at San Francisco and soon after, the P5 were still debating what the effect should be of voluntary abstentions,[4] while sometimes changing their positions.  Thus, it was left to actual practice to establish the interpretation of Article 27(3) in this regard.  And cases were not long in coming.

 

As early as the Council’s 39th meeting, convened on 29 April 1946, the Soviet Union abstained on a draft resolution on the Spanish question.  The Soviet representative offered his own view on the legal ramifications of his abstention.  Noting that a negative vote by him on the draft “would make its adoption impossible”, he stated that he would abstain, implying that such a vote would allow the draft to be adopted.  And in fact, having received the requisite number of affirmative votes, it was declared adopted as resolution 4 (1946).[5]

 

Dozens of cases followed of voluntary abstentions by one or more permanent members which were not considered by the Council as having blocked adoption of a resolution. These included abstentions by the United Kingdom on resolution 30 (1947) on Indonesia, by China on resolution 51 (1948) on Kashmir, by France on resolution 63 (1948) on Indonesia, and by the United States on resolution 66 (1948) on Palestine.  

 

In the case involving the United Kingdom and the Indonesian question, at a meeting on 1 August 1947, the British representative announced that he would abstain and that he did not want that abstention to be treated as a veto.  In response, the Council President (Syria) stated:

 

“I think it is now jurisprudence in the Security Council – and the interpretation accepted for a long time – that an abstention is not considered a veto, and the concurrent votes of the permanent members mean the votes of the permanent members who participate in the voting.  Those who abstain intentionally are not considered to have cast a veto.”[6]

 

This statement by the President was not challenged by any Council member.

 

In 1971, when the International Court of Justice handed down its Advisory Opinion on Namibia, the Court wrote that the practice of not regarding voluntary abstentions by permanent members as vetoes had “been generally accepted by Members of the United Nations and evidences a general practice of that Organization”.  In this connection, the Court indicated that

 

“By abstaining, a member does not signify its objection to the approval of what is being proposed; in order to prevent the adoption of a resolution requiring unanimity of the permanent members, a permanent member has only to cast a negative vote.”[7]

 

This interpretation by the Court of the term “concurring votes of the permanent members” in Article 27(3) has been accepted as definitive.  It is yet another example of how actual Security Council practice has given interpretation to the language in certain provisions of the Charter.  When looking at the number of Council resolutions adopted despite voluntary abstentions by one or more permanent members, one can imagine the innumerable blockages that would have occurred in the Council’s decision-making had Article 27(3) been interpreted more rigidly.

 

(This update supplements pages 339-341 in the book.)

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[1] We express our appreciation to the Dag Hammarskjöld Library reference librarians for their assistance in researching this list:  In 1965, resolution 202 (1965) on Southern Rhodesia was adopted with France, the Soviet Union, the United Kingdom, and the United States abstaining.  In 1969, resolution 275 (1969) on Guinea was adopted with China, France, the United Kingdom, and the United States abstaining.  In 1973, resolution 344 (1973) on a Middle East conference was adopted with France, the Soviet Union, the United Kingdom, and the United States abstaining; China did not participate in the vote.  Interestingly, all these cases occurred during the Cold War.

   In addition, there have been three cases when four P5 abstained on draft resolutions which did not receive sufficient votes to be adopted:  In 1993, China, France, the Russian Federation, and the United Kingdom abstained on a draft on Bosnia and Herzegovina (S/PV.3247).  In 1996, France, the Russian Federation, the United Kingdom, and the United States abstained on a draft on UNIFIL (S/PV.3654).  In 2000, France, the Russian Federation, the United Kingdom, and the United States abstained on a draft on a Middle East conference (S/PV.4248).  It is noteworthy that all these cases occurred after the end of the Cold War.

[2] Resolution 344 (2000), adopted on 18 December 2000 (S/PV.4248).

[3] See, for example, Norman Bentwich and Martin, Andrew, A Commentary on the Charter of the United Nations, Routledge & Keegan Paul Ltd., London, 1969 Kraus Reprint, pp.68-69.  See also Leland M. Goodrich and Hambro, Edvard, Charter of the United Nations:  Commentary and documents, World Peace Foundation, Boston, 1946, pp. 132-3.

[4] In contrast, from the outset it was widely accepted that obligatory abstentions by one or more P5 pursuant to Article 27(3) would not cause a draft resolution to fail to be adopted.

[5] S/PV.39.

[6] S/PV.173.

[7] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, para. 22.