The Security Council: Composition, Voting and the Veto

Binding decisions: article 25

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

This is the article that makes the Council different from every other organ. Its decisions create obligations, and by article 103 those obligations prevail over any other international agreement.

Two questions of construction arise. First, whether article 25 covers only decisions under Chapter VII. The better view, and the one supported by practice and by the placement of article 25 in Chapter V rather than Chapter VII, is that it covers decisions the Council intends to be binding wherever taken, and the Council's language is the guide: decides as against recommends, calls upon or urges.

Second, what "in accordance with the present Charter" qualifies. It is best read as attaching to the decisions, so that Members undertake to carry out decisions the Council is competent to take, which preserves in principle the limit in article 24(2).

Article 26 makes the Council responsible for formulating, with the assistance of the Military Staff Committee under article 47, plans to be submitted to Members for the establishment of a system for the regulation of armaments, with the least diversion of the world's human and economic resources. The article is close to a dead letter, and honesty about that is better than pretending otherwise.

Voting and the veto: article 27

Article 27(1). Each member shall have one vote.

Article 27(2), procedural matters. Decisions on procedural matters shall be made by an affirmative vote of nine members. Any nine, and no veto.

Article 27(3), everything else. Decisions 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.

Four things must be said accurately.

The word veto never appears in the Charter. What article 27(3) requires is the concurring votes of the permanent members, and a negative vote by any one of them defeats the decision. That is the veto.

Abstention is not a veto. The text says concurring votes, which read literally would mean a permanent member must vote yes. From the earliest years the Council treated a voluntary abstention by a permanent member as not preventing adoption, and that practice has been consistently followed and generally accepted, so a resolution adopted with permanent members abstaining is validly adopted. This is subsequent practice under article 31(3)(b) of the Vienna Convention operating on a constituent instrument, and it is the best example in the subject.

The obligatory abstention in the proviso is confined. A party to a dispute must abstain in decisions under Chapter VI and under article 52(3), and not under Chapter VII. So a permanent member that is party to a dispute must abstain on a Chapter VI recommendation and may vote, including against, on a Chapter VII decision concerning the same matter.

Who decides whether a question is procedural? That question is itself substantive, so it is subject to the veto. A permanent member may therefore veto the ruling that a question is procedural and then veto the question, which is called the double veto.

Procedure and participation: articles 28 to 32

Article 28(1). The Council shall be so organized as to be able to function continuously, and each member shall be represented at all times at the seat of the Organization. That is the structural contrast with the Assembly's annual sessions, and it is why the Council is the organ of emergency.

Article 28(2) and (3). Periodic meetings at which a member may be represented by a member of its government, and meetings at places other than the seat where that will best facilitate its work.

Article 29. The Council may establish such subsidiary organs as it deems necessary. Sanctions committees, peacekeeping operations and the international criminal tribunals for the former Yugoslavia and for Rwanda were all created under this article, which is why the article matters far more than its length suggests.

Article 30. The Council adopts its own rules of procedure, including the method of selecting its President. Its rules remain provisional to this day.

Article 31. Any Member not a member of the Council may participate, without vote, in the discussion of any question whenever the Council considers that the interests of that Member are specially affected. The Council decides.

Article 32. Any Member not on the Council, or any state which is not a Member of the United Nations, if it is a party to a dispute under consideration, shall be invited to participate, without vote, in the discussion relating to the dispute, the Council laying down such conditions as it deems just for a non-Member's participation.

The contrast between 31 and 32 is worth a line in an answer. Article 31 is discretionary and about interests; article 32 is mandatory and about being a party to the dispute.

Reform, and why it does not happen

Every criticism of the Council converges on article 23 and article 27, and every remedy runs into article 108.

The composition reflects 1945. Africa and Latin America have no permanent seat; India, with a population larger than that of the five permanent members other than China combined, has none.

The veto protects itself. Amendment under article 108 requires ratification by all the permanent members, so no amendment reducing the veto can pass without the consent of those who hold it.

What has changed instead is practice. The Council has expanded what counts as a threat to international peace and security, has legislated in general terms by resolution, and has created tribunals and administrations under article 29. The Charter's text has stood still while the organ's activity has grown, which is the central constitutional fact about the modern United Nations.

A worked example

State AA and State BB are in dispute. State AA is a permanent member. The Council considers a draft resolution recommending that the parties negotiate, under Chapter VI. It then considers a draft determining that the situation threatens international peace and security and imposing an arms embargo. On the first draft, nine members vote in favour including State AA, and two permanent members abstain. On the second, nine vote in favour, State AA votes against.

The first draft. It is a decision under Chapter VI and State AA is a party to the dispute, so by the proviso to article 27(3) State AA must abstain. Its affirmative vote is a breach of the obligation to abstain, and the count must be taken without it. If nine other members voted in favour the resolution carries; if not, it fails.

The abstentions. A voluntary abstention by a permanent member does not prevent adoption, on the settled practice of the Council since 1946.

The second draft. It is a Chapter VII decision, so the proviso does not apply and State AA may vote. Its negative vote is the concurrence article 27(3) requires and does not receive, so the draft fails.

May the Assembly then act? Article 12 bars a recommendation while the Council is exercising its functions, and where the Council is blocked by lack of unanimity of the permanent members, resolution 377(V) provides for the Assembly to consider the matter immediately, as [The General Assembly] sets out.

May State BB take part in the Council's discussion? Article 32 requires that a party to a dispute under consideration be invited to participate without vote, and it applies to non-Members as well as Members.

Change one fact: the Council votes on whether the second draft is a procedural matter. That preliminary question is not itself procedural, so it is subject to the veto, and State AA may defeat it. That is the double veto.

Distinctions table

What it does NOT mean

The Charter does not use the word veto. Article 27(3) requires concurring votes.

An abstention does not defeat a resolution. Settled practice treats voluntary abstention as concurrence.

A permanent member party to a dispute is not always disqualified. It must abstain only under Chapter VI and article 52(3).

Primary responsibility is not exclusive responsibility. Article 24(1) leaves the Assembly its powers.

Not every Council resolution binds. Article 25 attaches to decisions, and the Council's own language distinguishes deciding from recommending.

The Council is not above the Charter in principle. Article 24(2) requires it to act in accordance with the Purposes and Principles, though no organ is given power to enforce that.

Limits and criticism

The composition is frozen in 1945 and has been enlarged only once, in the amendment in force from 1965 that took the membership from eleven to fifteen. Whole regions have no permanent representation.

The veto makes the Council's effectiveness depend on the interests of five States, and its record is accordingly a record of action where those interests coincide and paralysis where they do not.

The expansion of the Council's practice has outrun its accountability. Creating criminal tribunals and imposing obligations of a general legislative character under article 29 and Chapter VII raises the question whether the Council is bound by the limits in article 24(2), and there is no organ competent to answer it, since the International Court has no general power of judicial review of Council decisions.

Article 26 has never been implemented, and the Military Staff Committee under article 47 exists on paper, so the Charter's design for collective security through standing arrangements was never built.

Quick revision

Article 23: fifteen members; five permanent, named in the Charter as the Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom and the United States, the seats now held by the People's Republic of China since 1971 and the Russian Federation since 1991; ten non-permanent elected for two years, no immediate re-election, with regard to contribution to peace and security and equitable geographical distribution.

Article 24: primary responsibility for peace and security; the Council acts on behalf of the Members; must act in accordance with the Purposes and Principles; reports to the Assembly.

Article 25: Members accept and carry out the decisions of the Council; with article 103, those obligations prevail.

Article 27: one vote each; procedural, nine votes; all other matters, nine including the concurring votes of the permanent members; a party to a dispute must abstain under Chapter VI and article 52(3). Abstention by a permanent member does not block. The double veto follows from the preliminary question being substantive.

Article 28: continuous functioning. Article 29: subsidiary organs, the basis of sanctions committees, peacekeeping and the ad hoc criminal tribunals. Article 31: participation without vote where interests specially affected, at the Council's discretion. Article 32: a party to a dispute, Member or not, shall be invited.

Reform requires article 108: two thirds of the Assembly and ratification by two thirds of Members including all the permanent members.

Test yourself

1. Describe the composition of the Security Council.

Article 23(1) provides that the Council shall consist of fifteen Members of the United Nations, of whom the Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom and the United States are permanent members, the seats of the first and third being occupied today by the People's Republic of China, following General Assembly resolution 2758 of 1971, and by the Russian Federation since the dissolution of the Soviet Union in 1991. The General Assembly elects ten non-permanent members, with due regard paid in the first instance to the contribution of Members to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution. By article 23(2) non-permanent members serve two-year terms and a retiring member is not eligible for immediate re-election. The membership was enlarged from eleven to fifteen by an amendment in force from 1965.

2. Explain the voting rule in article 27 and the veto.

Each member has one vote. Decisions on procedural matters are made by an affirmative vote of any nine members. Decisions on all other matters require an affirmative vote of nine members including the concurring votes of the permanent members, so a negative vote by any permanent member defeats the decision, and that is what is called the veto, though the Charter never uses the word. The proviso requires that in decisions under Chapter VI, and under article 52(3), a party to a dispute shall abstain from voting, which does not apply to Chapter VII. Because the preliminary question whether a matter is procedural is itself substantive, a permanent member may veto that ruling and then veto the substance, which is the double veto.

3. Does a permanent member's abstention block a resolution?

No. The literal text requires the concurring votes of the permanent members, which would suggest an affirmative vote from each. From the earliest years of the Organization, however, the Council treated a voluntary abstention by a permanent member as not preventing the adoption of a resolution, and that practice has been followed consistently and accepted generally. It is therefore a settled construction of article 27(3), and the best illustration in the subject of subsequent practice establishing the agreement of the parties within article 31(3)(b) of the Vienna Convention, operating on the constituent instrument of an organisation.

4. What is the effect of a decision of the Security Council?

By article 25 the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the Charter, so a decision creates a legal obligation. By article 103 the obligations of Members under the Charter prevail over their obligations under any other international agreement, which extends to obligations created by Council decisions taken under the Charter. Whether a particular resolution creates such an obligation depends on whether the Council was deciding or recommending, which is judged from the language used, the provisions invoked and the terms of the resolution as a whole. Article 24(2) requires the Council to act in accordance with the Purposes and Principles, though the Charter provides no organ with a general power to review whether it has.

5. When must a member of the Council abstain from voting?

Only in the case in the proviso to article 27(3): in decisions under Chapter VI, and under article 52(3) concerning the settlement of local disputes through regional arrangements, a party to a dispute shall abstain from voting. The obligation applies to permanent and non-permanent members alike, and it does not extend to Chapter VII. The practical consequence is that a permanent member which is a party to a dispute must abstain when the Council recommends procedures or terms of settlement under Chapter VI, but may vote, and may vote against, when the Council proposes to determine a threat to the peace and take enforcement measures concerning the same situation.

6. Why has Security Council reform failed?

Because it requires amendment of the Charter and article 108 makes amendment depend on the very members whose position would be reduced. An amendment comes into force when adopted by a two thirds vote of the General Assembly and ratified by two thirds of the Members including all the permanent members of the Security Council, so any one permanent member can prevent a change to the composition of the Council or to the veto. Article 109, providing for a General Conference to review the Charter, is subject to the same condition. The membership has therefore been altered only once, by the amendment in force from 1965 that raised it from eleven to fifteen, and what has changed since is the Council's practice rather than its constitution.