October 2014 Monthly Forecast

Posted 30 September 2014
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SECURITY COUNCIL AND WIDER UN STRUCTURE

International Court of Justice

Expected Council Action

In October, the president of the International Court of Justice (ICJ), Peter Tomka (Slovakia), is expected to brief the Council in a private meeting. The annual briefing normally coincides with the presentation of the ICJ’s annual report to the General Assembly.

Judge Tomka is likely to brief on the ICJ’s overall activities, its role in the peaceful settlement of disputes and maintenance of international peace and security and its relationship with the Council. No Council action is expected.

At press time, the annual report had yet to be released.

Background on the ICJ

The ICJ, one of the UN’s six principal organs, is located in The Hague and composed of 15 judges selected for nine-year terms. All UN member states are parties to the ICJ Statute, which is an annex to the UN Charter. The ICJ is the only international court of a universal character with general jurisdiction in terms of subject matter. Only states have standing to appear before it. To date, 70 of the 193 UN member states have submitted a declaration of acceptance of the compulsory jurisdiction of the Court, which confers on a state the right to bring another state or states (provided it has submitted the same declaration of acceptance of compulsory jurisdiction) before the Court, and, conversely, the duty to appear before the Court should proceedings be instituted against it. States may also accept the ICJ’s jurisdiction through special agreement on an ad-hoc basis. In addition, some 300 bilateral and multilateral treaties provide for the Court’s jurisdiction in resolving disputes arising out of the treaties’ application.

The ICJ and the Council have an important nexus established by the Charter. In the event that a state fails to abide by a Court decision, the other party may have recourse to the Council, which may then make recommendations or decide upon measures to give effect to the decision (article 94[2]). The ICJ also exercises advisory jurisdiction through a procedure that allows the Council, General Assembly and authorised UN organs and specialised agencies to request an advisory opinion on any legal issue (article 96). The Council may also recommend that parties refer relevant legal disputes to the Court (article 36).

Key Recent Developments

As part of the visiting mission to Europe and Africa, Council members visited the ICJ on 11 August and held a private meeting with Judge Tomka, members of the Court and the registrar. The stated purpose of the meeting was for the Council to express support for the work of the ICJ, emphasise the importance of continued cooperation and receive updates on its cases and other developments. During the meeting, Judge Tomka stressed that, in addition to traditional topics such as sovereignty and matters of border delimitation, the ICJ had devoted itself to addressing emerging issues. The meeting also included discussions on the recognition by member states of the compulsory jurisdiction of the Court and compliance with its judgments.

In the upcoming briefing, as in past briefings, Judge Tomka may focus on the complementary roles the Court and Council play in promoting the rule of law and emphasise the links between issues considered by the two organs. In addition, he may encourage the Council to make greater use of its ability to request advisory opinions, recommend the referral of legal disputes to the Court and, upon the request of one party, make recommendations or decide on measures to enforce an ICJ judgment in case of non-compliance.

At press time, there were 14 cases pending before the Court. During the latest reporting period, it delivered three judgments, 12 orders and seven new contentious (as opposed to advisory) cases were referred.

Key Issues

A key issue is the Council’s reluctance to use its authority (when appropriate) to request advisory opinions and to recommend that parties refer relevant legal disputes to the Court.

Additional important issues include compliance with the Court’s judgements and the Council’s willingness to, on request of one party, make recommendations or decide on measures in case of non-compliance.

Options

The Council is unlikely to take any action.  

Council Dynamics

While the Council appears open to having these annual meetings and demonstrated its support during the recent visit, there is unlikely to be much appetite to deepen the relationship further or for the Council to make greater use of the powers outlined above.

Regarding the acceptance of compulsory jurisdiction, five of the current Council members have done so: Australia, Lithuania, Luxembourg, Nigeria and the UK. (The US withdrew its acceptance in 1986.)

The Council has not demonstrated a willingness to request advisory opinions, having done so only once, in 1970, regarding the legal consequences of South Africa’s continued presence in Namibia. It has made only one express recommendation that a legal dispute be referred to the Court, in 1947, between the UK and Albania in the Corfu Channel Case.

There is one example of a formal request made to the Council to act in the case of non-compliance, made by Nicaragua in 1986 regarding the US’s non-compliance with the judgment in the case Military and Paramilitary Activities in and against Nicaragua. A resolution calling for compliance was vetoed by the US. More recently, although it was not a formal request, Mexico sent a letter to the Council in March stating the US had failed to comply with a 2004 judgment of the ICJ, requiring it to review and reconsider convictions and sentences of 51 Mexican nationals on death row. The Council has to date not discussed the letter and is unlikely to pass a resolution should a formal request be made.  

UN Documents on the ICJ 

Security Council Resolutions
9 April 1947 S/RES/22 This was the Council’s recommendation that a legal dispute between the UK and Albania be referred to ICJ.
29 July 1970 S/RES/284 This resolution contained a request for an advisory opinion from the ICJ on Namibia.
Security Council Meeting Record
19 August 2014 S/PV.7245 This was a briefing on the Council’s 8-14 August visiting mission to Europe and Africa.