RETHINKING THE APPLICABILITY OF THE NEMO JUDEX RULE TO THE DECISION-MAKING PROCESS IN THE SECURITY COUNCIL

Abstract

The rule of nemo judex in causa sua (nemo judex rule), which is one of the twin pillars of natural justice, demands that no one should act as a judge in a case in which he has a personal or vested interest. This procedural rule, which is predicated on the fact that justice should not only be done but should manifestly and undoubtedly be seen to be done1, forms part of the general principles of law recognized by civilized nations2, because law of nations is a law founded on the great and immutable principles of equity and natural justice.3 It is for this reason that the United Nations Charter provides in the proviso to its Article 27 (3) that in decisions of the Security Council under Chapter VI and under Article 52 (3) of the United Nations Charter, a party to a dispute shall abstain from voting. But this adaptation of the nemo judex rule in the proviso to Article 27(3) of the United Nations Charter is not holistic because it is restricted to only decisions of the Security Council under Chapter VI and under Article 52 (3) of the United Nations Charter which deal solely with pacific settlement of dispute, and so does not apply to decisions of the Security Council under other Chapters or Articles of the United Nations Charter. As a result of this, members of the Security Council participate in the decision-making process in the Security Council under other Chapters and Articles of the United Nations Charter over disputes which they are parties to which makes them judges in their own case, contrary to the dictates of the nemo judex rule. Also, this creates a dangerous leeway for the permanent members of the Security Council to use their veto power to block draft resolutions of the Security Council in disputes which they are parties to, like Draft Resolution S/2022/155 sponsored by eightyfive state parties to, among other things, compel Russia to withdraw its military forces from the territory of Ukraine which was vetoed by the Russian Federation on the 25th February, 2022 to justify its unlawful use of force against Ukraine. Therefore, there is an urgent need to rethink the applicability of the nemo judex rule to the decision-making process in the Security Council so as to make it holistic.