SPEECH OF HIS EXCELLENCY JUDGE ABDULQAWI AHMED YUSUF,
PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE,
TO THE SECURITY COUNCIL
18 December 2020
Upholding international law within the context of fostering close
co-operation between the International Court of Justice
and the Security Council
Mr. President,
Excellencies,
Ladies and Gentlemen,
1. Allow me at the outset to congratulate you, Mr. President, and the Republic of South Africa,
for your chairmanship of the Council during the month of December 2020. I am grateful for the
opportunity to brief the Council one more time before the end of my term as President of the Court.
Among the various questions that were suggested for our discussion today, I wish to examine the
leading one, namely “[h]ow can we strengthen the partnership between the Security Council and the
Court to uphold the rule of law at the international level”?
2. This partnership is, in my view, already strong, but I have no doubt that it can be further
strengthened. As you may recall, in my last speech to the Security Council about a month ago,
I referred to the fact that the Council has only once used its powers under Article 36, paragraph 3, of
the Charter to recommend to disputing Parties to settle their dispute through the Court. This was in
the Corfu Channel (United Kingdom v. Albania) case. The Council has also only once requested an
advisory opinion, the Namibia Advisory Opinion, from the International Court of Justice under
Article 96 of the Charter. One may therefore ask: how can the partnership be characterized as strong
if the Council has relied so sparingly on its powers under the Charter of the United Nations to make
use of the functions of the Court? My answer is that the vitality of the relationship between these two
principal organs of the United Nations is to be evaluated not by the quantity but rather by the quality
of our collaboration.
3. Let me start with the Corfu Channel case. As you may know, the Corfu Channel case was
the very first case brought before the Court. It could therefore be said that the Council helped to
kickstart the judicial activities of the Court in 1947. Moreover, the referral of the Corfu Channel case
to the Court helped avoid a dispute that could have degenerated into a full-blown war with several
protagonists, just a couple of years after the end of the Second World War. This case demonstrated
that the Charter’s system of co-operation between the Court and the Council that the drafters had
designed in 1945 could produce effective results. It reinforced faith in the Charter framework on the
maintenance of international peace as a whole.
4. As far as the contribution of the Corfu Channel case to the rule of law at the international
level is concerned, the case provided the opportunity for the Court to reaffirm that the “policy of
force” has no place whatsoever in the Charter era. The Judgment of the Court also clarified the scope
of some of the most fundamental principles of the contemporary legal order. For instance, the Court
reaffirmed that between independent States, respect for territorial sovereignty is an essential
foundation of international relations (Corfu Channel (United Kingdom v. Albania), Merits,
Judgment, I.C.J. Reports 1949, pp. 35-36). The Court also laid down the principles of State
responsibility for illegal acts performed on their territory (see ibid., p. 18), a topic that is still very
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relevant today, especially in relation to the fight against terrorism, cyber-attacks and trans-border
environmental damage.
5. At the same time, the Corfu Channel case gave the Court the opportunity to test some of its
procedural tools. It was in this case that the Court exercised, for the first time, jurisdiction based on
forum prorogatum, that is to say consent to the jurisdiction of the Court given by the Respondent
after the initiation of the proceedings. This basis of jurisdiction of the Court, which is not mentioned
in its Statute, was later codified in Article 38, paragraph 5, of the Rules of Court. In addition, the
Corfu Channel case remains one of the few instances in which the Court appointed experts under
Article 50 of its Statute to provide it with an opinion on issues of a technical or scientific character.
6. The same may be said about the 1971 Namibia Advisory Opinion. As you may recall, this
case arose from the decision of the apartheid régime in South Africa to maintain its presence and
authority in the territory of South West Africa (Namibia), despite the termination of South Africa’s
mandate by the General Assembly. Like the Corfu Channel Judgment, the Namibia Advisory
Opinion also contributed significantly to the rule of law at the international level. This was the first
opinion of the Court that took full account of the fundamental principle of equal rights and
self-determination of peoples enshrined in the United Nations Charter. The Court noted, among other
things, that an international instrument has to be interpreted and applied within the framework of the
entire legal system prevailing at the time of the interpretation. It further stated that
“the subsequent development of international law in regard to non-self-governing
territories, as enshrined in the Charter of the United Nations, made the principle of selfdetermination
applicable to all of them” (Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 31,
para. 52).
7. The clarification by the Court of the applicability of the right to self-determination to the
people of Namibia, together with the identification of the legal consequences which attached to
resolution 276 (1970) of the Security Council, paved the way for concrete actions that later facilitated
the accession of Namibia to independence.
Mr. President,
8. There are also less visible ways in which the Court and the Council contribute to each other’s
work and thus co-operate with each other. This is mainly done through their respective contributions
to the development of international law and hence to the strengthening of the international rule of
law. It suffices to provide but a few examples here.
9. For instance, the Security Council has increasingly used international law as a parameter to
identify threats to international peace and security. This was the case in resolution 1296 (adopted on
19 April 2000), in which the Security Council made a link between violations of international law
and threats to international peace and security. You may recall that, in that resolution, the Security
Council held that
“the deliberate targeting of civilian populations or other protected persons and the
committing of systematic, flagrant and widespread violations of international
humanitarian and human rights law in situations of armed conflict may constitute a
threat to international peace and security” (Security Council resolution 1296 (2000)).
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10. In addition to using international law as a parameter for determining the existence of threats
to peace, the Council has already used it to address such threats. For instance, the Security Council
expanded the scope of rules of international law to non-State actors to maintain international peace
and security.
11. The Court, for its part, has constantly supported the Security Council’s mission of
maintaining international peace and security. I will mention here only a few examples, starting with
the confirmation by the Court, in the Certain Expenses Advisory Opinion, that the Security Council
could establish peacekeeping forces which were to be funded by the general budget of the
Organization as part of the “expenses of the Organization”, under Article 17, paragraph 2, of the
United Nations Charter (Certain Expenses of the United Nations (Article 17, paragraph 2, of the
Charter), Advisory Opinion, I.C.J. Reports 1962, p. 179). Similarly, the Court has clarified how to
interpret and determine the binding character of the resolutions of the Security Council in the Kosovo
and Namibia Advisory Opinions, respectively. These two opinions have contributed to the
effectiveness of the resolutions of the Security Council by removing any doubts that the addressees
of such resolutions may have had on their legal value or their interpretation, which are prior steps to
their appropriate implementation.
Mr. President,
Distinguished Delegates,
12. I would now like, in this second part of my statement, to make some specific suggestions
that could further reinforce the co-operation between our two organs.
13. I will start with the appeal I made to the Council at the end of my last speech on 26 October
2020. As you may recall, I made an appeal to the Security Council to resume its past tradition of
recommending the referral of legal disputes to the Court, and to make use again of the advisory
function of the Court on legal questions. I said that the United Nations Charter allows you to do so.
That is true. However, allow me to make a distinction between the two possibilities.
14. I can understand the reluctance of the Council to recommend the referral of a dispute to
the Court, by the Parties concerned, unless it is clear that both Parties are ready for such a step. After
all, the wording of Article 36, paragraph 3, refers to a “recommendation” by the Council, which is
legally non-binding and cannot, therefore, establish the jurisdiction of the Court over a dispute
without the consent of the Parties. Thus, without first ascertaining the consent of the Parties to the
jurisdiction of the Court, it might be difficult for the Council to make such a recommendation.
15. However, the request for an advisory opinion is a different matter. Such an advisory
opinion would not be binding and would not be addressed directly to States, but rendered for the
benefit of the Council to clarify a specific legal issue. The Security Council would then be free to do
whatever it wishes with such an opinion.
16. The General Assembly, in its resolution 43/51 of 1988 entitled “Declaration on the
Prevention and Removal of Disputes and Situations Which May Threaten International Peace and
Security”, called upon the Security Council, “if it is appropriate for promoting the prevention and
removal of disputes or situations”, to consider requesting the Court, at an early stage, to give an
advisory opinion on any relevant legal question.
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17. Much has been said since then by UN organs, including the Security Council, about
preventive diplomacy and the need to resolve disputes or diffuse situations at an early stage. The
General Assembly was of the view that a request for an advisory opinion from the Court could play
an important role in the Council’s work to prevent situations or disputes from becoming a threat to
international peace and security. I share that view, and I believe that the Council could consider that
possibility more often.
18. My second suggestion relates to the possibility of an expanded dialogue between the Court
and the Security Council. Thus, I wish to suggest that, in addition to the annual briefing of the
President of the Court to the Security Council, the Security Council could include in its schedule a
visit to the Court once every three years, following the triennial renewal of the composition of the
Court, in which the Council participates through the election or the re-election of judges. This would
allow the Council to see first-hand the work of the Court and discuss with all 15 Members of the
Court issues of common interest. In this regard, I wish to recall that the last visit of the Council to
the Court took place on 11 August 2014, six years ago.
19. My third and last suggestion concerns the jurisdiction of the Court. The Security Council
issued presidential statements in 2006, 2010 and 2012, in which it called upon States to consider
accepting the jurisdiction of the Court in accordance with its Statute. In its statement of
19 January 2012, the Council emphasized “the key role of the International Court of Justice, the
principal judicial organ of the United Nations, in adjudicating disputes among States and the value
of its work”. To this end, the Council “call[ed] upon States that have not yet done so to consider
accepting the jurisdiction of the Court in accordance with its Statute” (S/PRST/2012/1).
20. However, in the last eight years no such statement has been issued by the Council. We
believe that such statements by the Council contribute to the strengthening of the relationship
between our two organs, as well as the international rule of law. They could be made periodically
(perhaps once every three to five years) starting with today’s sitting. As you are all aware, there are,
at present, only 74 Member States of the United Nations that have made declarations accepting the
compulsory jurisdiction of the Court. It is my view that accepting the jurisdiction of the Court means
adhering to and strengthening the rule of law at the international level. 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.
Mr. President,
21. I submit these three modest suggestions for the consideration of the Council, and I remain
at your disposal for any questions or clarifications.
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Speech by H.E. Mr. Abdulqawi A. Yusuf, President of the International Court of Justice, to the Security Council