December 2020 Monthly Forecast

Posted 30 November 2020
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SECURITY COUNCIL AND WIDER UN STRUCTURE

International Court of Justice

Expected Council Action

In December, the Council will hold a briefing on “the promotion and strengthening of the rule of law, focusing on strengthening the cooperation between the Security Council and the International Court of Justice (ICJ)”. The president of the ICJ, Abdulqawi Ahmed Yusuf, is expected to brief. The briefing is an initiative of South Africa as president of the Security Council in December. A presidential statement is a possible outcome.

Background

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 under 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, as provided in Article 96(1) of the Charter. At the same time, Article 94(2) also gives the Council responsibility for addressing instances of non-compliance by states with the Court’s judgments when these are brought before the Council. To date, the Council has only recommended that states refer their dispute to the ICJ under Article 36(3) on one occasion, the Corfu Channel Case, which was the first proceeding of the ICJ. Resolution 22 of 9 April 1947 recommended that Albania and the UK immediately refer their dispute to the Court. The 11-member Council adopted the resolution with eight votes in favour and two abstentions (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, in resolution 284 of 29 July 1970, which 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 make 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. On 28 October 1986, the US vetoed a draft resolution calling for full and immediate compliance with the ICJ judgment.

Since 2000, the president of the ICJ has briefed the Council annually in a private meeting. The most recent such briefing took place on 28 October. The briefing normally coincides with the presentation of the annual report of the ICJ to the General Assembly, which this year occurred on 2 November. The report, covering 1 August 2019 to 31 July, was released on 1 August. A communiqué is issued after the annual private meeting instead of a verbatim record. It does not include reference to the substance of the meeting, only that it took place and that there was “an exchange of views”.

The Council and the General Assembly jointly elect the 15 ICJ judges, who serve nine-year terms. Five seats come up for election every three years. Most recently, on 12 November, the Council re-elected five judges (in the second round of voting) to the ICJ for terms beginning on 6 February 2021. (After the first round of voting on 11 November, no candidate obtained enough votes in each organ for election to the Court.)

On 17 May 2018, the Council held an open debate under Poland’s presidency on “Upholding international law within the context of the maintenance of international peace and security”. One of the briefers was then Judge Hisashi Owada of the ICJ who briefed on behalf of the president of the court. (For more details see our What’s In Blue story of 15 May 2018.)

Council Dynamics

The UN Charter envisioned a symbiotic relationship between the Security Council and the ICJ, as 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. The five permanent members have at times perceived the Court’s jurisprudence as contrary to their interests. The US and France withdrew their acceptance of the compulsory jurisdiction of the Court. China and Russia, for their part, take a position of principle that states should resolve their differences through bilateral negotiations, not third-party dispute settlement procedures. Yet a more prominent role for the Court could serve to strengthen the effectiveness and legitimacy of the Council as an institution. (See the Security Council Report research report on the rule of law of 20 December 2016, which examines the relationship between the Security Council and the ICJ, including options for enhancing that relationship to assist the Council in its work, available here.)

During its pervious term on the Security Council from 2011 to 2012, South Africa convened a debate on 19 January 2012, on “the promotion and strengthening of the rule of law in the maintenance of international peace and security” at which a presidential statement was adopted. The statement emphasised the “key role” of the ICJ, among other things.

While the annual private meeting with the president of the ICJ has become accepted practice, there has been limited appetite to deepen the relationship further or for the Council to make greater use of its ability to request advisory opinions. The briefing in December could be an opportunity to further explore the relationship between the two bodies as well as ways for strengthening cooperation. It will also allow for members to exchange views, in a more open format, on the issue.

UN DOCUMENTS ON THE INTERNATIONAL COURT OF JUSTICE

Security Council Presidential Statement
19 January 2012S/PRST/2012/1 The Council adopted a statement on justice and the rule of law as “an indispensable element for peaceful coexistence and the prevention of armed conflict.”
Security Council Meeting Records
11 November 2020S/PV.8773 This was the election of five judges to the ICJ.
17 May 2018S/PV.8262 This was an open debate on “Upholding international law within the context of the maintenance of international peace and security”.
19 January 2012S/PV.6705 This was an open debate on the promotion and strengthening of the rule of law in the maintenance of international peace and security.
General Assembly Document
1 August 2020A/75/4 This was the annual report of the ICJ.