Promotion & Strengthening of Rule of Law: Strengthening Cooperation between Security Council & International Court of Justice - Security Council Open VTC

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18-Dec-2020 01:55:45
Using advisory opinions would bolster links between Security Council, World Court, strengthen rule of law, Chief Justice says in open debate.

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The Security Council could help strengthen the rule of law in matters of peace and security by better utilizing advisory opinions of the International Court of Justice and by urging all Member States to accept the Court’s mandatory jurisdiction, the chief justice of the judicial body mandated by the Charter of the United Nations told the 15-nation organ today in a 18 December video conference open debate.

“Without a court of law to which disputes can be referred for peaceful resolution, the existence of a rule of law at the international level may be doubted,” said Justice Abdulqawi Ahmed Yusuf, who also serves as President of the World Court. Underscoring that the relationship between the International Court of Justice and the Security Council is already strong, he noted that it could be strengthened by more frequent interaction.

He also noted that the Council could also periodically call on States to accept the mandatory jurisdiction of the Court, as it last did in 2012. So far, only 74 Member States made declarations accepting such jurisdiction, among them only one permanent member of the Security Council.

He also noted that the Council has only once recommended that parties refer a dispute to the Court, in the 1947 Corfu Channel case, and has only once requested an advisory opinion, in the matter concerning Namibia and South Africa in 1974. However, he added: “The vitality of the partnership should not be evaluated by the quantity but the quality of the interaction.”

Both cases helped establish the United Nations role in rule of law and international peace and security, he pointed out. The Corfu Channel case kick‑started the activities of the Court, avoiding a dispute that could have become a full-blown war soon after the end of the Second World War. It reaffirmed that that the use of force has no place in policy in the era of the Charter of the United Nations and helped to develop the procedures of the Court.

The case also helped establish important principles in contemporary international relations, he noted, including respect for territorial sovereignty, as well as the possibility of internationally deemed illegal acts performed within a territory. The 1974 Namibia advisory opinion also contributed significantly to the rule of law at the international level, reinforcing principles of equal consideration and self-determination of peoples in the Charter.

In addition, he said, both the Council and the Court have contributed to international law in ways that are not always obvious. The Council has used Court decisions to make a link between violations of international law and threats to international peace and security. The Court also helped clarify the Council’s operations, for example through confirmation by the Court that the Council could establish peacekeeping missions under the United Nations budget. Court opinions have also affirmed the binding character of decisions of the Security Council.

In recommending to the Council that more use be made of referral recommendations and advisory opinions, he said he understood the reluctance of the Council to request referral of a dispute because of the non-binding nature of such a request, as the referral then depended on the parties’ assent. An advisory opinion, on the other hand, even though it is also non-binding, can be used by the Council to clarify a specific legal issue. That is particularly useful at the early stage of a conflict, including in considerations of preventative diplomacy. In that interest, it should be used more often.

He also suggested that dialogue between the Court and the Council be enhanced, with a Council visit to the Court scheduled every three years. The last such visit took place six years ago, he observed.

Following the briefing, Security Council members took the floor, with most affirming the important role, complementary to the Council, of the International Court of Justice through the United Nations Charter. Most speakers also called for strengthening the relationship between the Council and the Court to promote the peaceful settlement of disputes under international law.

In that vein, some seconded Justice Yusuf’s call for more frequent appeals by the Council for States to accede to mandatory jurisdiction and for more frequent use of advisory opinions. Nonetheless, other speakers emphasized that the relationship between the Council and the Court should be strengthened only within mandated purviews, while some urged parties to settle disputes through dialogue outside of the judicial framework.

As the meeting was an open debate in the video-teleconference format, Member States not on the Security Council who wished to make statements submitted written versions for inclusion into the meeting record.

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