Abstention Obligation Under the UN Charter in the Light of the Subsequent Practice of the Permanent Members

A permanent member of the Security Council derives its veto power from Article 27(3) of the Charter of the United Nations. The proviso of Article 27(3), however, provides that when the Security Council is considering a non-procedural resolution under Chapter VI and Article 52(3) of the Charter, a party to the dispute to which the resolution relates shall not vote. It is also known as the obligatory abstention rule. The abstention obligation seems clear, but the practice of the obligation is not as straightforward. Some scholars argue against the abstention obligation because it has not been invoked for decades. On the other hand, some argue that treaty obligations cannot be modified or amended by subsequent practice. This paper argues that the abstention obligation under Article 27(3) cannot be amended by the subsequent practice of the Security Council, and it proposes that the General Assembly make an application to the International Court of Justice (ICJ) for an authoritative pronouncement in this regard.