Background
The principle nemo iudex in causa sua—no one should be a judge in their own cause—has deep roots in international law, yet its codification in the UN Charter has often been disregarded. Article 27(3) requires a State that is a party to a dispute to abstain from voting on related Security Council resolutions under Chapter VI, provided the matter is non-procedural. Although long viewed as dormant, the Russia–Ukraine war has revived interest in this principle.
The last notable compliance with Article 27(3) dates back to the Eichmann case in 1961, when Argentina abstained. Since then, the rule’s relevance has been questioned, particularly amid Russia’s repeated vetoes of Ukraine-related resolutions following its 2014 annexation of Crimea and the 2022 invasion. Given Russia’s clear status as a ‘party to the dispute,’ scholars and practitioners have seen an opportunity to reassert Article 27(3) and to crystallize a workable definition of that term.
Efforts to revitalize Article 27(3) align with broader initiatives to reform Security Council practices, aiming to increase representativity and limit abusive vetoes. Applying 27(3) in the Russia–Ukraine context could both provide a concrete case study and clarify a realistic, applicable standard for identifying a ‘party to a dispute.’
Has Article 27(3) fallen into desuetude?
The Vienna Convention on the Law of Treaties does not recognize desuetude or obsolescence as grounds for terminating treaties. While obsolescence refers to the disappearance of a legal situation essential to a treaty’s application, desuetude has no place in international law. Moreover, the UN Charter’s “quasi-constitutional” character reinforces its enduring relevance.
Evidence also shows that Article 27(3) has not faded from practice. ICJ Judge Nabil Elaraby, speaking in his personal capacity, urged the Council to “strictly and faithfully” apply Article 27(3). More recently, world leaders pledged in Action 41(a) of the Pact for the Future, to “[f]ully implement and adhere to all provisions of the Charter of the United Nations as they relate to the decision-making process in the Security Council, including Article 27(3).”
Momentum around Article 27(3) has grown. Initial calls by Liechtenstein and New Zealand in 2014 and 2016 have since expanded, with a broad coalition—including the Baltic countries, the Netherlands, the Nordic nations, Australia, and Singapore—pressing the Security Council to enforce the provision. Denmark, speaking for the Nordic countries in 2023, stressed the need to ensure no State acts as “party, judge, and jury.”
Dispute v. Situation
The ICJ advisory opinion in the Namibia case constitutes the most important judicial precedent regarding the interpretation of the word ‘dispute.’ Essentially, according to Professor Akira Kato, “if a matter put on the UNSC agenda is characterized as a ‘situation,’ not as a ‘dispute,’ then the obligatory abstention rule is inapplicable.” However, if the characterization is unclear, the definitions of the two different terms are ambiguous. While the ICJ focused on the fact that States have a margin of discretion in this characterization, and that they can decide whether or not to prevent application of 27(3) – it did not speak to definitions of the two concepts in the event States fail to characterize clearly. Importantly, the ICJ seems to consider these terms mutually exclusive.
Scholars have written extensively on the subject. Among the proposed definitions, Merrills and De Brabandere distinguish a situation from a dispute by characterizing a situation as “a general state of disagreement, opposition or antagonism,” being more flexible and general than a dispute. Interestingly, Blum offered a distinction based on bilateral/multilateral matters: while bilateral tensions are usually a dispute, multilateral matters tend to be situations. This falls within the line of the definition given by the interim committee in 1948 characterizing a dispute “whenever the 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 constitute a breach of an international obligation or are endangering or are likely to endanger the maintenance of international peace and security… and the State or States which are the subject of these allegations contest, or do not admit, the facts alleged or inferences to be drawn from such allegations.” Therefore, for a dispute to exist, there must be an accusation that another State’s action poses a risk to international peace and security and a response from the accused State. The PCIJ in Mavrommatis Palestine Concessions stated that a “dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons. A mere assertion does not constitute a dispute; it must be proved that the claim of one party is positively opposed by the other.”
It seems that positive opposition and characterized accusation, as developed in Mavrommatis and echoed in the 1948 Interim Committee’s definition, presuppose a bilateral structure. While such disputes may trigger broader international concern, the definitional threshold appears to be met primarily in cases involving two directly opposed States. Even if the bilateral dispute focuses the attention of the international community, it doesn’t prevent the matter between the two States from being a dispute. In other words, these matters can be considered bilateral ‘disputes,’ but multilateral ‘situations.’
Applying 27(3) to the Russia-Ukraine war
It is important to keep in mind that States have a large margin of discretion and can easily circumvent the application of 27(3). By drafting a resolution under Chapter VII, or by clearly characterizing a matter as a ‘situation,’ they can avoid the trigger of the obligatory abstention. This assertion, however, indicates that the failure to take either of these actions – invoke Chapter VII or use the word ‘situation’ – would support an application of 27(3).
The wording of UNSC Resolution 2774, on the Russian Federation-Ukraine conflict, suggests that the obligatory abstention could have been part of the considerations among its drafters. Already in 2016, in the UNSC, Ukraine considered this “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.” A reading of Resolution 2774 through the lens of the above definitions suggests that its language deliberately avoids the use of the word ‘situation.’ It talks about the “Russian Federation-Ukraine conflict,” recalls the UN’s purpose “to peacefully settle disputes,” and refers to the matter as “conflict” in OP 1. While the word ‘dispute’ is used one time, and ‘conflict’ repeatedly evoked, ‘situation’ never comes up.
This contrasts with previous and current practice. Matters on the UNSC’s agenda are often referred to as ‘situations.’ In 2021, 44 of the 57 adopted resolutions included the word; in 2022, it appeared in 42 out of 54; and by 2023, it was present in 48 of the 50 resolutions passed. For example, Member States explicitly barred the application of 27(3) in the Falkland/Malvinas War case, where the UK argued that it was entitled to vote because the matter fell under Chapter VII. In the Lockerbie case, the US, the UK, and France argued that the matter was not a dispute but a “situation arising from a grave security concern.” UNSC resolution 2774’s language differs from these cases and avoids the word ‘situation’ or Chapter VII characterizations, despite such characterizations being widespread.
Objectors will argue that the resolution is among the shortest ever adopted. They may add that its language was not shaped by a legalistic interpretation of Article 27(3), but by a political strategy: signaling a shift in U.S. foreign policy and offering generous terms to Russia in hopes of avoiding its veto. However, a closer look at the resolutions adopted the same day at the UNGA on the subject – one of them introduced by Ukraine and taking a tougher approach with Russia – both avoid the term ‘situation’ and refer to the principle of peaceful settlement of disputes. Additionally, none of these UNGA resolutions explicitly include the provisions within Chapter VII, keeping the door open for a reasonable assumption that they fall under Chapter VI.
Towards a definition?
Consequently, a definition following these proposed characterizations needs to stem from the current conflict. Resolution 2774 suggests that the obligatory abstention was not forgotten when drafting the resolution. Qualifying a dispute as a bilateral issue involving an accusation and a response, constituting a threat to international peace or breach of the peace (whether this is determined multilaterally or bilaterally), and which excludes the wording of ‘situation,’ appears to meet the criteria for the ‘party to a dispute’ requirement under Article 27(3).
Reviving Article 27(3) in the Russia–Ukraine context is more than a legal exercise; it is a litmus test for the Council’s credibility. To retain its legitimacy as a guardian of peace, the Security Council must ensure that procedural rules—especially those curbing conflicts of interest—are respected. The current conflict offers a rare opportunity to restore constitutional discipline to the Council’s decision-making.
The author discloses that he worked on these issues in his capacity as an adviser to the Government of Liechtenstein. However, the views expressed in the article are his own and do not represent the official position of the Government.