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Open Debate: Strengthening Cooperation between the Security Council and the International Court of Justice

Tomorrow (18 December), Security Council members will hold a virtual open debate 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. At the time of writing, Council members were negotiating a draft presidential statement that addresses the relationship between the Council and the ICJ that might be adopted tomorrow.

The open debate is a signature event of South Africa’s presidency of the Council in December, the final month of its 2019-2020 Council term. According to a concept note (S/2020/1194) circulated ahead of the open debate, the purpose of the meeting is to enhance the relationship between the Security Council and the ICJ. It identifies the ICJ as “one of the most cost-effective solutions for upholding the rule of law at the international level and to ensure the effectiveness of the United Nations framework for the maintenance of international peace and security”. It notes that cooperation between the ICJ and Security Council has been limited and that the Council should “make more use of the Court as an instrument or tool in the exercise of its mandate to maintain international peace and security”. The concept note identifies several instances in which the Council could make use of the ICJ, including by recommending that states refer their dispute to the ICJ, under Article 36(3) of the UN Charter, and by asking the ICJ to provide advisory opinions on legal questions that arise in the Council’s work, under Article 96(1) of the UN Charter.

The concept note outlines several questions to guide members in making their statements:

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/75/4).

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 the Court. The five permanent members of the Council have at times perceived the Court’s jurisprudence as contrary to their interests. Of the five permanent members, only the UK accepts the Court’s compulsory jurisdiction, but with caveats submitted in 2017, including that it does not apply to cases between Commonwealth countries. China and Russia take a position of principle that states should resolve their differences through bilateral negotiations, not third-party dispute settlement procedures. France and the US, for their part, withdrew their acceptance of the compulsory jurisdiction of the Court several decades ago.

The Council has held several thematic discussions on the rule of law over the years. In this regard, members may also seek to build on statements made at a 17 May 2018 open debate under Poland’s presidency on “Upholding international law within the context of the maintenance of international peace and security” (S/PV.8262). One of the briefers was Hisashi Owada, then an ICJ judge, who briefed on behalf of the president of the court.

South Africa has had a long-standing interest in the rule of law as a thematic issue in the Security Council. During its previous term on the Security Council from 2011 to 2012, it convened a debate (S/PV.6705) on 19 January 2012, on “the promotion and strengthening of the rule of law in the maintenance of international peace and security”. As an outcome of that debate, a presidential statement was adopted (S/PRST/2012/1) that, among other elements, emphasised the “key role” of the ICJ.

(For more on the relationship between the Security Council and the ICJ, please see Security Council Report’s December 2016 research report on the rule of law).

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