What's In Blue

Posted Tue 15 May 2018

Upholding International Law Open Debate

On Thursday (17 May), the Security Council will hold an open debate on the “Maintenance of international peace and security: Upholding international law within the context of the maintenance of international peace and security”. The open debate will be presided over by the President of Poland, Andrzej Duda. Briefers will be Maria Luiza Ribeiro Viotti, Chef de Cabinet of the Secretary-General, on behalf of the Secretary-General; Judge Hisashi Owada of the International Court of Justice (ICJ), on behalf of the President of the Court; and Judge Theodor Meron, President of the Mechanism for International Criminal Tribunals (MICT). Many member states are expected to participate, some at ministerial level. Poland may circulate a summary of the discussion in order to facilitate further engagement on potential courses of action suggested during the open debate.

According to the concept note circulated by Poland ahead of the debate, its objective is to allow the Council to contemplate its role in improving the implementation of international law in connection with its primary responsibility for the maintenance of international peace and security, and what measures can be taken to that effect. The concept note asks participants to focus on three main issues.

The first is the peaceful settlement of disputes, with a view to preventing and ending conflict. The concept note highlights Chapter VI of the UN Charter on the pacific settlement of disputes and the various methods enumerated therein. In particular, it emphasises the role of the ICJ, the principle judicial organ of the UN, in settling disputes between states. To date, the Council has only exercised its authority to recommend that the parties to a dispute settle their differences before the ICJ on one occasion, in 1947. Similarly, it has only requested an advisory opinion from the Court on a single occasion, in 1970. Participants may discuss how the Council can make more use of these tools. Judge Owada, who is due to retire from the Court on 7 June, is expected to address the relationship between the two UN organs. (For more on this issue see our 20 December 2016 report on “The Rule of Law: Can the Security Council make better use of the International Court of Justice?”).

The second area of focus is the respect for international law by parties to a conflict, in particular international humanitarian law and international human rights law. The concept note for Thursday’s debate states that there is insufficient implementation of Council resolutions upholding these bodies of law, adversely affecting international peace and security. Translating the Council’s rhetorical commitment to the protection of civilians at the thematic level into concrete measures, including by enhancing compliance with international humanitarian law and international human rights law, continues to be a challenge. A ministerial-level open debate on the protection of civilians in armed conflict is expected on 22 May.

The third area of focus is accountability for violations of international humanitarian law and international human rights law, including by facilitating the investigation and prosecution of perpetrators. The issue of accountability for serious human rights violations and international crimes is raised frequently in Council meetings. Over time, the Council has integrated individual accountability into its work in various ways, most notably with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in 1993 and 1994, respectively. The residual work and issues related to these tribunals, no longer in operation, are now carried out by the MICT. Meron, who also served as President of the ICTY, is expected to address the role that individual accountability can play in the maintenance of international peace and security. The concept note requests participants to focus on practical measures that can be taken to improve compliance with Council resolutions related to accountability, including by assistance to member states with capacity gaps.

Council members frequently emphasise the importance of upholding international law in specific situations, and the debate may provide constructive avenues for the Council to pursue in this regard. Nonetheless, the current polarised dynamics in the Council regarding cases such as Syria, Yemen, Israel/Palestine, and others may make it difficult to have a frank and balanced discussion of how to uphold international law in specific situations.

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