In light of the recent instances wherein the US exercised its veto power, obstructing the adoption of two United Nations Security Council resolutions urging an immediate ceasefire in Gaza, here and here, the Council remains blocked to take action regarding the Palestinian question and the conflict in the region. The permanent members of the UN Security Council, namely France, the UK, the USA, Russia (referred to as the USSR in the Charter) and China have the power to veto any proposed action of the Council, except for procedural matters as enshrined in Article 27(2).

The composition and the authority of the P5 have long been the center of controversy and voiced recently with regards to the Russia-Ukraine war and the Palestinian question. Perspectives range from criticism of its perceived inherent unfairness, it being “built to be unfair”, to its recognition as an indispensable mechanism of the UN and the maintenance of world peace. In fact, the P5 is thought to have been a motivating factor for the US’ support of the organization’s creation. Despite the criticism, a Security Council reform seems difficult. Alteration of the UN Charter, as enshrined in its Article 109(2), necessitates a ⅔ majority vote of the UN Members, including each of the permanent Security Council members. Amidst escalating geopolitical competition and increasing political polarization within numerous nations, the likelihood of modernizing the Council is fairly low. Additionally, the UN members cannot agree whether a reform over the use of veto is necessary in the first place. The status quo and the fact that the UN system is so built occasionally give rise to deadlock situations within the Security Council, hindering efforts in the maintenance of international peace and security. As recently elaborated by Hathaway, implementing a non-amendment reform within the Security Council is also feasible. Through the interpretation and revitalization of certain legal mechanisms, the fate of the veto power could be determined differently. In this commentary, the potential for circumventing the P5 veto through alternative legal mechanisms, possibly through the Article 27(3) of the UN Charter will be discussed.

Article 27(3) requires abstention from voting by parties directly involved in a dispute concerning decisions under Chapter VI. Nevertheless, there are two essential issues that render this provision ineffective. Primarily, this provision is specifically intended to prevent the use of veto in matters termed as “disputes” within the meaning of Chapter VI and its pacific settlement of disputes. Therefore, it does not extend to the Council’s enforcement measures under Chapter VII. Furthermore, this provision is no longer resorted to in the Security Council practice for longer than two decades, as if it has vanished through a tacit agreement. Its effectiveness (or ineffectiveness) was pointed out by Judge El-Kosheri in his dissenting opinion to the Lockerbie case, when Libyan contention regarding the illegality of Resolution 731 as it did not comply with Article 27(3) was not upheld by the Court.

This commentary aims to address the effectiveness of Article 27(3), and its potential as a legal shield in instances of a Security Council deadlock. The technical intricacies pertinent to Article 27(3) will be elucidated through concrete examples drawn from the Palestinian issue and the two most recent draft resolutions. Although there may no longer be a recourse for the two vetoed draft resolutions, these insights could be significant for facilitating the path forward for future similar decisions and mitigating the deadlock caused by the veto power.

Scope of Application

The first issue arising from Article 27(3) pertains to its champ d’application. The UN Charter entrusts the Security Council in the maintenance of international peace and security concentrated in two respects: i) the peaceful settlement of disputes under Chapter VI and ii) the adoption of enforcement measures under Chapter VII. Article 27(3), expressed by its wording, applies to Security Council decisions under Chapter VI, and under paragraph 3 of Article 52, relevant to a certain “dispute”. Innuendo, the conditions to resort this article are as follows: i) it applies to the Security Council decisions in its peaceful settlement of disputes, ii) there needs to be a “dispute”, and iii) it obliges the party to the dispute to abstain from voting. An a contrario reading then would indicate that there is no obligation to abstain in the adoption of enforcement measures. In light of the recent threats to global peace and security, the situation in Gaza for the purposes of this commentary, this is an important distinction. Firstly, it is necessary to examine the provisions of the two vetoed Council resolutions, here and here, and determine their legal qualifications, as well as identify under which provision of the UN Charter they were adopted. There is no explicit indication within the resolutions themselves regarding the specific provision under which they were adopted. If it is determined that the decisions were made under a provision other than Chapter 6, then the applicability of Article 27(3) would not arise. However, if it is concluded that these decisions were made under Chapter VI, then a more technical issue arises. Article 27(3) applies solely to “disputes”. Whether a dispute exists in Gaza cannot be definitively asserted. Furthermore, the US (as the vetoing permanent member) cannot be definitively considered as a “party” to this “dispute”.

The draft resolution S/2023/773, introduced by Brazil, received affirmative votes by 12 Council members, but ultimately failed due to the US veto. Upon examining both its introductory and operative clauses, it overall outlined a peaceful settlement of conflict, involving resort to regional agencies and arrangements as well as mediation. Further, there was no indication of resorting to Chapter VII enforcement measures. It neither encompassed Article 41 measures involving complete or partial interruption of economic relations or communication, nor did it incorporate Article 42 measures entailing the use of force. Subsequently, the draft resolution S/2024/173, proposed by Algeria, also failed after receivingaffirmative votes from 13 Council members, but again, encountering a US veto. Similarly, it lacked indications of Chapter VII enforcement measures and reiterated the demand for the cessation of hostilities and adherence to international law. Hence, it can be inferred from these observations that both resolutions were adopted under Chapter VI.

Having established that both resolutions were adopted under Chapter VI, two additional determinations must be addressed. According to the International Court of Justice’s Advisory Opinion of 21 June 1971, the application of Article 27(3) necessitates the Security Council’s prior determination of a dispute’s existence and the involvement of certain Council members as parties to such a dispute. In fact, two distinct assessments need to be made. Firstly, it will be necessary to evaluate whether there is a “dispute” within the meaning of this provision. Indeed, the existence of parties is inherent to the concept of a dispute. Therefore, the first step is to diagnose whether the conflict in Gaza involves at least two sides constituting parties to a dispute. Israel, as a UN Member State, can be deemed as one of the parties. Hence, the inquiry extends to the eligibility of Palestine to assume the status of a party to the dispute. For the purposes of the first question, whether a dispute exists, requires a ratione materiae analysis of the provision. While the primary addressees of this provision are UN Member States due to the multilateral conventional character of the UN Charter, the obligation of peaceful settlement as a customary rule also applies to third-party States that are not part of the UN. Furthermore, there is a widely accepted understanding that the term “dispute” does not exclusively denote an inter-State character; it might even extend to non-State entities benefiting from the prohibition on the use of force. Therefore, de facto regimes and national liberation movements, which are also obliged to adhere to the principle of non-use of force, may be regarded as “parties to any dispute.” Based on this conclusion, Palestine, whose statehood is not universally recognized by the international community and remains a non-UN Member State can nonetheless be regarded as a party to the dispute, albeit not as a state but as a non-state entity. Regardless of whether Hamas or Palestine as a state is involved in the dispute or whether Hamas represents Palestine or not, non-state entities can be considered capable of constituting a dispute under Article 27(3). Consequently, the criterion can be deemed fulfilled.

The second assessment that needs to be made addresses how this determination would in any way relate to the US veto. A caveat to consider is that while the US is not a prima facie party to the dispute and therefore cannot be compelled to abstain from voting, an expansive interpretation of the term “dispute” might suggest otherwise. Accordingly, the provision can be thought to oblige all members of the Security Council which are involved in this conflict to abstain from voting when the Council addresses the matter under Chapter VI.  Such an interpretation aligns with the travaux préparatoires of Article 27(3), which indicate that the Security Council is supposed to hold that States are parties to a dispute where:

“a) the State or States bringing the matter before the Security Council, and the State or States whose conduct is impugned, agree that there is a dispute; b) whenever a State or States bringing the matter before the Security Council allege that the actions of another State or States in respect of the first State or States violate international law or are endangering or are likely to endanger the maintenance of international peace and security, provided the State or States which are the subject of these allegations contest or deny them; and finally c) where the Security Council decides that a dispute exists even in circumstances not covered by the definition.”

Especially given that a dispute within the meaning of Article 27 might be of a political nature as well, some within the international law doctrine argue that the US’ position has a reasonable nexus to the dispute.

The Council itself decides both that a dispute has arisen and also who the parties to the dispute are, thus it can technically prohibit a permanent member from vetoing a resolution. Therefore, with the adoption of the aforementioned interpretation regarding the identification of parties to a dispute, the Security Council could effectively prohibit the US from vetoing the resolutions. At this juncture, the determination of whether this action is procedural or non-procedural becomes highly significant. If the determination of whether a specific set of circumstances qualify as either a situation or a dispute is considered a substantive issue under Article 27(3), any permanent member of the Security Council could veto a decision labeling it as a “dispute”. Consequently, treating the determination of the dispute versus situation nature of given circumstances as a non-procedural matter would render Article 27(3) ineffective as the permanent member which is actually a party to a dispute could veto it from the very start and hinder its determination as a dispute and itself as a party. Similar considerations apply to determining the parties involved in a given dispute. Conversely, if such determinations were categorized as non-procedural matters, any permanent member of the Security Council could prevent the determination that it itself is a party to a dispute and would therefore not be obligated to abstain. As mentioned earlier, the only way for Article 27(3) to fulfill its raison d’etre is through determining its preconditions as procedural matters. This approach would enable the effective implementation of Article 27(3), as vetoes by the P5 are not valid for procedural matters under Article 27(2), where the affirmative votes of 9 members are sufficient for approval.

Conclusion

As summarized thus far, in light of the application of Article 27(3) of the UN Charter to recent Security Council resolutions concerning the conflict in Gaza, the first problem pertains to the scope of Article’s application. It can be concluded that the Article is indeed applicable. So far, analysis of the two previous vetoed resolutions suggest that the Security Council can take binding action under Chapter VI, and it has attempted so. Further, there is a “dispute” in the region within the meaning of Article 27(3), and the US can be considered as a “party” to this dispute. Finally, such determinations can be made without facing the blockage of a single P5 veto.

Once it is found that the Article is technically applicable to the issue at hand, the second problem pertains to whether this rule still exists in international law. Given the silence of Council members when it comes to the possible occasions where the Article could be applied, the idea that it vanished through a tacit agreement stands strong. In light of this, further examination is warranted to clarify the current status and applicability of Article 27(3), thus advocating for its discussion within the Council is crucial.