CYIL vol. 14 (2023)

PETRA RUFFER LUSTIGOVÁ CYIL 14 (2023) and purposes found in the UN Charter, and the limits of its own competencies under the same Charter. As this was reaffirmed by the UN Secretary-General (and repeated in the ICJ advisory opinion on Namibia ): “ the Members of the United Nations have conferred upon the Security Council powers commensurate with its responsibility for the maintenance of international peace and security. The only limitations are the fundamental principles and purposes found in Chapter I of the Charter ”. 57 Regarding the procedural aspects, there is a general presumption that favours prima facie lawfulness and validity of adopted decisions, and therefore “ a resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ’s rules of procedures, and is declared by its President to have been so passed, must be presumed to have been validly adopted ”. 58 In the case of Security Council rules regarding the voting procedure, there exists in practice an unwritten but commonly accepted divergence from the provisions of the Charter. Article 27(3) of the UN Charter requires for a decision of the Security Council to be adopted by an affirmative vote of nine members including the concurring votes of the permanent members (the veto power). 59 “ Notwithstanding the clear words of Article 27, para. 3, the United Nations practice has, since its early years, tended to acknowledge the validity of decisions made with abstention of one or more permanent members ”. 60 It has even been claimed that this practice “ gave rise to one of the few unwritten rules in the Organization that derogate from the Charter provisions ” in the form of customary rule. Such opinion was also expressed by the ICJ in the Namibia case that the proceedings of the Security Council “ have consistently and uniformly interpreted the practice of voluntary abstention by a permanent member as not constituting a bar to the adoption of the adoption of resolution ”. 61 Therefore, it is possible that a Security Council resolution is adopted even if all the permanent members abstain. Yet, the power of veto within the Security Council’s voting system provides an important safeguard against the misuse of sensitive Chapter VII enforcement powers, but also gives the permanent members de facto control over the actions of the Council. In discharging its duties, the Security Council is, according to Article 24(2) of the Charter, 62 obliged to act in accordance with the purposes and principles enshrined in the UN Charter. The most important of these being the first of them: 57 Cited in: O’Connell, supra note 1 , pp. 56–57. 58 Namibia Case (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 July, 1971), ICJ Reports (1971), p. 10. See also, DROUBI, S. Resisting United Nations Security Council Resolutions (Routledge, 2014), p. 10. 59 “Practice reveals great flexibility in the application of Art. 27. Dynamic interpretation, particularly linked to the purpose of Art. 27, has allowed a pragmatic development of the law concerning abstentions, non-participation in the vote, absence by permanent members, and the consensus procedure, and has thus contributed to this flexibility. To the extent that the legal requirement of ’concurring votes’ in Art. 27(3) is applied liberally”. SIMMA, B. & BRUNNER, S., On Article 27, in: Simma, supra note 7 , p. 466, MN 108. 60 CONFORTI, B. The Law and Practice of the United Nations (Kluwer Law International, 2 nd revised ed., 2000), p. 66. 61 Namibia Case (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 July, 1971), ICJ Reports (1971), p. 22, para. 22. 62 Article 24(2) of the UN Charter : In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.

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