501.BC/4–846
Memorandum by the Counselor of the Department (Cohen)4
The Effect of Abstention From Voting
Article 27(3) provides:
“3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of seven 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.”
It should be noted that the Charter provides that a party to a dispute shall abstain from voting. It does not expressly provide that if a party to a dispute is a permanent member, its concurrence shall not be required. Yet it is clear that the intent of the Charter is that such concurrence may be dispensed with when a permanent member which is a party to a dispute abstains from voting as it is required to do under the Charter.
If a permanent member’s concurrence is not necessary when it is required to abstain from voting, there would seem to be no sound reason why its concurrence should be required if it voluntarily abstains from voting.
There was it is true some informal committee discussion in San Francisco that looked the other way, but this discussion was never publicized nor were any authoritative decisions communicated to the Conference at the time the Charter was adopted.
There certainly is no compelling reason for requiring the concurrence of a permanent member if it voluntarily abstains from voting. Every legitimate interest of a permanent member is protected when it is given the right to register its nonconcurrence. If it fails to avail itself of the opportunity granted and deliberately abstains, it should be deemed to have waived its right of concurrence.
There may be many matters on which a permanent member may not wish to vote in the affirmative and still may not wish to exercise its veto. It is absurd to insist that a permanent member must veto a proposal if it cannot vote for it.
If a permanent member deliberately withdraws from participation [Page 259] in any proceedings of the Council, it cannot be urged that it was intended to give it the right to stop all further proceedings until it chose to return. While the hope was expressed at San Francisco that no member would withdraw from the Organization, yet it was conceded that a member could withdraw if it wished. Yet it was never suggested that the withdrawal of a permanent member would put an end to the Security Council. But that is exactly what would happen if the abstention of a permanent member is considered the equivalent of a negative vote on every substantive question.
The requirement that seven members of the Council must vote affirmatively to make any substantive decision is a requirement that cannot be waived. It was placed in the Charter to prevent action by a rump Council. But the concurrence of the permanent members was a special right given to the permanent members in view of the special responsibilities they assumed. To retain that right, the permanent member must be present and register its nonconcurrence.5
- Handed by Mr. Cohen to Harding Bancroft of the Division of International Security Affairs on April 8; transmitted by Mr. Bancroft to the Director of the Office of Special Political Affairs (Hiss) on April 9. The memorandum printed infra was transferred in the same way. The two were described subsequently by Mr. Hiss as “paper 1” and “paper 2”.↩
- A notation by Mr. Hiss on the transmittal “chit” reads: “paper 1 doesn’t consider q[uestion] of US Govt commitment to others of Big 5”, a possible reference to the June 7, 1945 Statement of the Four Sponsoring Powers.↩