In Hindsight: The Security Council and the International Court of Justice
The UN Charter envisioned a symbiotic relationship between the Security Council and the International Court of Justice (ICJ), the principal judicial organ of the UN. However, the Council has scarcely made use of the ICJ as an instrument, or “tool”, in the exercise of its responsibility for the maintenance of international peace and security. In its latest research report on the rule of law of 20 December 2016, Security Council Report examines the relationship between the Security Council and the ICJ, including options for enhancing that relationship to assist the Council in its work.
The ICJ was established in 1945 by the same constitutive instrument as the Security Council, the UN Charter, to act as the principal judicial organ of the UN. The Statute of the Court is annexed to the Charter itself, meaning that all UN member states are automatically parties to the Statute. The ICJ is mandated to settle contentious legal disputes submitted by states against other states in accordance with international law. Judgments given in contentious cases between states are binding on the parties. The Court also gives advisory opinions to the Council, the General Assembly and other authorised bodies on legal questions referred to it by these entities.
One of the tools available to the Council to peacefully settle international disputes affecting international peace and security is to make use of the ICJ’s jurisdiction in such cases (Article 36 (3) of the UN Charter) or to ask it to provide advisory opinions on legal questions that arise in the Council’s work (Article 96 (1)). At the same time, the Charter also gives the Council responsibility for addressing instances of non-compliance by states with the Court’s judgments brought before the Council (Article 94 (2)). In addition, the Council—jointly with the General Assembly—elects the judges of the ICJ, and the President of the ICJ briefs the Council in a private meeting annually.
To date, the Council has only recommended that states refer their dispute to the ICJ under Article 36 (3) on one occasion, in the Corfu Channel Case—the first proceeding of the ICJ—when on 9 April 1947 in resolution 22 it recommended that Albania and the UK immediately refer their dispute to the Court. The resolution was adopted with eight votes in favour and two abstentions, from Poland and the USSR, while the UK, as a party to the dispute, abstained from voting in accordance with Article 27(3) of the Charter. Similarly, the Council has requested only one advisory opinion from the Court, on 29 July 1970 in resolution 284, when it asked for an advisory opinion on the legal consequences for states of South Africa’s continued presence in Namibia. As for non-compliance, the Council has yet to use its powers under Article 94(2) to enforce a judgment. However, one attempt to have the Council exercise that authority was when Nicaragua requested, in a letter to the president of the Council on 17 October 1986, an emergency meeting to consider the failure of the US to execute the ICJ’s judgment of 27 June 1986 against it in the Military and Paramilitary Activities in and against Nicaragua Case. The US vetoed a draft resolution calling for full and immediate compliance with the ICJ judgment on 28 October 1986.
Over the years, not only the Council but also other member states and the Secretariat have largely refrained from taking advantage of the possible contribution the ICJ could make to the successful execution of the Council’s mandate, in contrast to the potentially fruitful interaction between the two organs envisaged in the UN Charter. The Charter gives much discretion to the Council in how to use the tools at its disposal, including the ICJ, but after more than 70 years it is evident that the Council has failed to effectively resort to the Court or press disputing states to do so, where relevant.
This failure is part of a larger Council dynamic: the Council has been reluctant to resort to other UN organs and external actors that it does not control and whose actions it cannot necessarily predict. Instead, the Council has opted to retain control and decision-making powers at the possible expense of effectiveness while not taking full advantage of its options. From the perspective of the P5, when it comes to the Court more specifically, the Court’s jurisprudence has, at times, been perceived as hostile to their interests.
Of course, not every international conflict situation on the Council’s agenda could or should be brought before the ICJ. Yet, as a general rule, the Council could make a more concerted effort to use all of the tools at its disposal to resolve and avoid conflicts or, at the very least, consider the utility of these tools when solutions to conflicts are sought. The potential usefulness of the ICJ to the work of the Council should not be overlooked, and interaction with the Court, as envisioned by the UN Charter, could regularly be considered.
The Secretariat and other entities briefing the Council should likewise bear in mind, in their interaction with the Council, the possible role the ICJ could play in assisting the Council in the successful execution of its responsibilities.
The relationship between the Council and the ICJ could also benefit if certain changes occur and decisions are taken outside the Council. One such change concerns the ability of the Secretary-General to request advisory opinions of the ICJ on legal issues that arise within the Secretariat’s work, including work related to matters of international peace and security. At present, the Secretariat is the only principal UN organ not authorised to make such requests. This power could be conferred on the Secretariat by the General Assembly under Article 96(2) of the UN Charter. Various proposals to this effect have been made over the years, including by several Secretaries-General: Trygve Lie, Dag Hammarskjöld and Boutros Boutros-Ghali. The latter included such a proposal in his 1992 report An Agenda for Peace. The intention was that the Secretary-General would then be able to use this power to assist his role as mediator and provider of good offices between states.
Requesting an advisory opinion on a specific legal issue between states could help resolve matters that cause an impasse and assist the relevant parties in moving forward to resolve further issues. It could also help the Secretary-General overcome legal uncertainties that might arise in the context of the Secretariat’s work while performing tasks given to it by the Council. In addition, the ability of the Secretary-General to request an advisory opinion from the Court would be the equivalent of his power under Article 99 of the Charter to bring issues to the attention of the Council on his own initiative. The fact that the Secretary-General would have the discretion to make such requests, as opposed to needing to obtain agreement from a majority of states in other UN organs, would simplify the request process and remove the politics involved in obtaining a majority in those other organs.
A more prominent role for the Court with respect to the Security Council’s work, whether on the Council’s initiative or otherwise, would likely strengthen the effectiveness and enhance the legitimacy of the Council as an institution.