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The Rule of Law: Can the Security Council make better use of the International Court of Justice?

 

This is Security Council Report’s research report, The Rule of Law: Can the Security Council make better use of the International Court of Justice? To view the full report, please download the PDF.

Executive Summary

Security Council Report’s fourth report on the rule of law focuses on the relationship between the Security Council and the International Court of Justice (ICJ). The UN Charter envisioned a symbiotic relationship between the Security Council and the ICJ, the principal judicial organ of the UN. Indeed, one of the tools available to the Council to settle peacefully disputes affecting international peace and security is to make use of the ICJ’s jurisdiction in such cases or to ask it to provide advisory opinions on legal questions that arise in the Council’s work. At the same time, the Charter gives the Council responsibility for addressing instances of non-compliance by states with the Court’s judgments brought before the Council. However, the Council has rarely taken advantage of this potential relationship or played a role in addressing non-compliance. For the most part, the role of the ICJ has been neglected by Council members and by the Secretariat.

This report on the rule of law, therefore, analyses the history and dynamics of the Security Council’s relationship with the ICJ and the potential for the Council to make better use of it in its work to promote international peace and security and the peaceful settlement of disputes.

We conclude that, though the Council has wide discretion in the way it executes its primary responsibility for the maintenance of international peace and security, the Council could benefit by recommending in certain situations (and in extraordinary situations, demanding) that states settle their disputes before the Court, or by requesting advisory opinions from the Court. As a further part of its primary responsibility, the Council could also take a proactive role in ensuring compliance with Court judgments.

Another conclusion based on the analysis in this report is that it is important for the Council, the wider UN membership and the Secretariat to bear in mind the potential of the Court to assist the Council in executing its responsibilities when trying to resolve conflicts and situations on its agenda. By consistently considering the possible role of the ICJ in a given situation, the Council is more likely to utilise the ICJ appropriately, enhancing the effectiveness of its actions.

Overall, the report concludes that—at a time when the demands on the Council are higher than ever in its history—strengthening the relationship between the Council and the Court could further promote international peace and security.

 

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