Using Advisory Opinions Would Bolster Links between Security Council, World Court, Strengthen Rule of Law, Chief Justice Says in Open Debate
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 videoconference 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.
The representative of Viet Nam, pointing to the Court’s mandate as the principal judicial organ of the United Nations, highlighted its adjudicatory and advisory functions and stressed the importance of strengthening the coordination between the Court and the Security Council. Noting that the Corfu Channel case was the first and only case in which the Council recommended the parties refer their dispute to the Court, he emphasized that the Court’s judicial expertise can make a significant contribution to the work and activities of the Council in dealing with burning international legal issues. Further, more capacity-building efforts using international judicial and arbitration bodies will promote peaceful settlement of disputes. Commending the Court’s efforts to engage young law graduates through its Judicial Fellowship Programme, he added that familiarizing young academia with its and the settlement of international disputes through the law is a legitimate investment that will bear long-term fruits.
The representative of the Russian Federation said that States are free to choose the means for the settlement of disputes that are the most appropriate in any situation. The important thing is to engage in dialogue and reach mutually acceptable solutions. The need to resolve disputes peacefully, as well as the usefulness of establishing a judicial organ, was evident long before the Charter of the United Nations was adopted. The Hague Peace Conference became an important milestone in that process. The International Court of Justice and the Security Council cooperate within their mandates and make a significant contribution to the peaceful settlement of disputes. Respect for the rules and principles of international law, including in the settlement of disputes, is the chief attribute of stable peace and security. Therefore, the use of judicial proceedings to stir up political disputes is unacceptable, he said.
The representative of Indonesia said that the International Court of Justice is indubitably a fundamental part of the international system for maintaining peace and security. Ways and means should be explored to strengthen relations with the Security Council, in the interest of reinforcing the rule of international law in the peaceful settlement of disputes between States. In that light, she pointed out that her country and Malaysia chose to accept the Court’s jurisdiction in a matter adjudicated in 1997 and have remained bound by its decision. The Council could make further use of the Court by recommending referrals or requesting advisory opinions, as provided by the Charter. She called on all members of the Council to remain united in support of the Court’s work.
The representative of the Dominican Republic, recalling that the creation of the United Nations followed the cruellest political and military event of the twentieth century, emphasized that the Organization brings together almost all of the world’s political Powers. As these Powers can generate either well-being or destruction for humankind, their actions must be limited by the rule of law. The drafters of the Charter envisioned that the Court would play a protagonist role in this regard, working hand in hand with the Security Council to maintain peace around the world. However, that relationship has been basic over past years. Urging the Council to enhance its cooperation with the Court as a peaceful means to resolve disputes, he quoted Emperor Justinian I: “Justice is the constant and perpetual wish to render to everyone his due.” He also pointed out that most border controversies in Latin America in recent decades have been subject to the Court’s jurisdiction, which provided peaceful settlements to controversial disputes.
The representative of Niger said that his country takes disputes to the Court to emphasize the peaceful settlement thereof with its neighbours. He urged the Council and the Court to reinforce the complementarity that exists in their relationship. He also added his support for strengthening the Court’s involvement in the maintenance of international peace and security by transferring legal disputes to the Court pursuant to Article 36 of the Charter. The Court’s continued objective decisions encourage States with disputes to pursue peaceful settlement through justice. Encouraging the Court to continue its practice of permitting students from different linguistic and geographic regions to become familiar with its practice through fellowship programmes, he suggested that this practice could be extended to the Council, as well.
The representative of Germany said that the Security Council and the Court are key to guiding Member States on how to act in accordance with international law with the Charter of the United Nations at its core. Effective multilateralism only works in an international order that is based on rules that are applicable to all. Citing Justice Yusuf’s comment that “policy of force” has no place in the United Nations order, a fact very well said, he added that it would be good if the referral of disputes to the Court happened more often. Regarding Justice Yusuf’s spotlighting of the advisory function of the Court, he also added his support to the plea that the Council uses this possibility more often. On the Judge’s proposal of the acceptance of compulsory jurisdiction of the Court, he noted that 74 countries subscribe to this, including Germany.
The representative of Saint Vincent and the Grenadines said that, in this new era of international disputes, a comprehensive approach across the various organs of the United Nations is now more critical than ever. The Charter envisioned a symbiotic relationship between the Security Council and the International Court of Justice. Yet, the Council has not taken full advantage of the Court’s well‑established jurisprudence. Member States have an obligation to engage constructively with the Court, she said, underscoring that “political will is needed to ensure that decisions of the Court are not reduced to ceremonial pieces of paper”. Decisions must be fully respected and effectively enforced. Failure to do so serves to undermine the multilateral system and deters efforts aimed at conflict prevention, peacekeeping, conflict resolution and peacebuilding. She also welcomed President Yusuf’s efforts to ensure that the Court’s Judicial Fellows Programme is inclusive and fully representative of all geographic regions and legal traditions.
The representative of Belgium affirmed that the Court has a central role in reinforcing the international rule of law, calling it the heart of the international order. Common rules and institutions are essential for the maintenance of international peace and security. More so, the wide range of cases referred show the respect that the Court has garnered. It is regrettable, however, that so few members of the Council, including only one permanent member, have submitted to the mandatory jurisdiction of the Court, resulting in few requests for referrals. Such referrals should become more frequent. As well, the Council could also follow through on interim measures following decisions by the Court. Welcoming the trust fund for judicial fellows, she warmly welcomed the initiative and expressed hope that it will have positive effects on the development of international law.
The representative of China said that the Court and the Council have both made significant contributions to the United Nations-centred international system. He stressed the importance of defending the cardinal principles of the Charter, such as national sovereignty, peaceful settlement of disputes and the barring of interference in internal affairs. The international security architecture must also be maintained, with the role of the Court fully leveraged for that purpose. Uniform application of international law must be ensured; the international order should be more equitable and rules-based. The Court and the Council must collaborate with one another to reject unilateralism, including unilateral coercive measures. China will continue to be a builder of world peace and multilateralism and to support the role of both the Court and the Council in that regard, he pledged.
The representative of Estonia said that, while the Court’s judgments are binding upon the parties concerned, its jurisprudence has a broader impact, including as guidance in the interpretation of international law. The mandate of the Security Council in relation to the Court is manifold. The Council can request the Court to provide an advisory opinion, may recommend that parties to a legal dispute refer it to the Court and can proactively take measures to ensure compliance with a Court judgment. It is also not hard to recognize that these comprehensive tools have been far too rarely used by the Council. He urged all Member States that have not yet done so to accept the compulsory jurisdiction of the Court. Currently, only 5 countries from the Security Council’s membership of 15, including Estonia, and only 74 Member States, have accepted this jurisdiction.
The representative of the United Kingdom said that the International Court of Justice — the United Nations’ principal judicial organ — plays a key role in the peaceful settlement of disputes between States, and that its jurisdictional basis for contentious cases is the consent of the parties involved. The range of cases currently on the Court’s docket illustrates the global nature of the body and underscores its important role in settling matters before the Security Council is forced to intervene. However, the rule of law on the international level would be enhanced if more States accepted the Court’s compulsory jurisdiction, he pointed out, expressing hope that such States do so to enhance the Court’s standing and efficacy.
The representative of the United States said that the Court’s increasing workload demonstrates a recognition — by those Member States that accept its jurisdiction — that it is preferable to resolve disputes in The Hague rather than allowing them to fester and potentially spark armed conflict. Recalling a time when territorial disputes and trade matters were resolved almost routinely though military means, he said that the Charter and the Statute of the International Court of Justice transformed the way in which the world dealt with these issues. Turning to the Court’s Judicial Fellows Programme, he added his support for enhancing participation therein among law school graduates from developing countries and for increasing opportunity for future practitioners of international law to learn from the Court’s judges, as this will strengthen the rule of law.
The representative of Tunisia said that the most recent case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide is an illustration of the Court’s contribution. The Security Council should consider referrals to the Court, as well as requests for the Court’s advisory opinions on any legal questions. The Council has the political mandate for ensuring upholding the rule of law by giving effect to judicial decisions, after the Court has allocated rights and responsibilities and assessed competing legal claims among States parties. Highlighting the complex threats and evolving challenges to global peace and security, including the COVID‑19 pandemic, he stressed that the codification and progressive development of international law must continue, hand in hand, through international organizations, tribunals and courts. In that way, the international community will be able to live up to the purposes and principles of the Charter.
The representative of France said that, in these times of challenges to multilateralism, the Council must reaffirm the degree to which the Court remains an essential institution for peace in the international legal order. The mandates of the Court and the Council are complementary when it comes to international peace and security. Examples of this over last 75 years abound, including the Court’s contributions on the resolution of border disputes, in Africa in particular. The Charter enshrines the missions of both the Court and the Council, as well as the links between them. The Security Council must keep in mind that parties to a legal dispute must generally refer it to the Court. Once the Court has handed down a judgement, the Council can then ensure its full execution. The Security Council can, like the General Assembly, refer a matter to the Court when it encounters legal issues that require clarification. These opinions are aimed at ensuring a better understanding of international law and cannot replace decisions in the resolution of bilateral disputes.
The representative of South Africa, Council President for December, spoke in his national capacity, saying that cooperation between the Court and the Council should be strengthened. Yet, the Council and Member States have unfortunately not made enough use of the Court’s potential to settle disputes peacefully. Among other things, the Council should encourage Member States involved in situations that threaten peace and security to resolve their disputes by referral to the Court. In addition, in instances where there is non-compliance that might threaten international peace and security, the Court’s President should brief the Security Council. As well, while the Judicial Fellows Programme does allow law graduates to gain experience by working at the Court, it is not accessible to most law graduates from developing countries. In that regard, he spotlighted Justice Yusuf’s efforts to give more law graduates from developing countries an opportunity to participate in the Programme and added his support for the General Assembly resolution that aims to address this shortcoming through a voluntary trust fund.