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Letter Dated 23 December 2020 from the President of the Security

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Letter Dated 23 December 2020 from the President of the Security United Nations S/2020/1286 Security Council Distr.: General 24 December 2020 Original: English Letter dated 23 December 2020 from the President of the Security Council addressed to the Secretary-General and the Permanent Representatives of the members of the Security Council I have the honour to enclose herewith a copy of the briefing provided by Judge Abdulqawi Ahmed Yusuf, President of the International Court of Justice, as well as the statements delivered by the representatives of Belgium, China, the Dominican Republic, Estonia, France, Germany, Indonesia, the Niger, the Russian Federation, Saint Vincent and the Grenadines, South Africa, Tunisia, the United Kingdom of Great Britain and Northern Ireland, the United States of America and Viet Nam, in connection with the video-teleconference on “The promotion and strengthening of the rule of law in the maintenance of international peace and security: strengthening the cooperation between the Security Council and the International Court of Justice”, convened on Friday, 18 December 2020. In accordance with the understanding reached among Council members for this video-teleconference, the following delegations and entities submitted written statements, copies of which are also enclosed: Austria, Bangladesh, Brazil, Denmark, Japan, Liechtenstein, Mexico, Morocco, Myanmar, Peru and Portugal. In accordance with the procedure set out in the letter dated 7 May 2020 from the President of the Security Council addressed to the Permanent Representatives of the members of the Security Council (S/2020/372), which was agreed in the light of the extraordinary circumstances caused by the coronavirus disease pandemic, the attached briefing and statements will be issued as a document of the Security Council. (Signed) Jerry Matthews Matjila President of the Security Council 20-17735 (E) 301220 280121 *2017735* S/2020/1286 Annex 1 Statement by the President of the International Court of Justice, Abdulqawi Ahmed Yusuf Allow me at the outset to congratulate you, Sir, and the Republic of South Africa on your presidency of the Security Council during the month of December. I am grateful for the opportunity to brief the Council one more time before the end of my term as President of the International Court of Justice. Among the various questions that were suggested for our discussion today, I wish to examine the leading one: “How can we strengthen the partnership between the Council and the Court to uphold the rule of law at the international level?” In my view, that partnership is already strong, but I have no doubt that it can be further strengthened. Council members may recall that in my most recent briefing to the Security Council on 28 October, I referred to the fact that the Council has only once exercised its powers under Article 36, paragraph 3, of the Charter of the United Nations to recommend that disputing parties settle their dispute through the Court — in the case of Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania). The Council has also only once requested an advisory opinion from the International Court of Justice under Article 96 of the Charter — in the case of Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). 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 to make use of the functions of the Court? My answer is that the vitality of the relationship between the two principal organs cannot be evaluated by the quantity, but rather by the quality, of our collaboration. Let me start with the Corfu Channel case. As some 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 kick-start 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 involving several protagonists, just a couple of years after the end of the Second World War. That case demonstrated that the Charter’s system of cooperation between the Court and the Council, which the drafters had designed in 1945, could produce results. It reinforced faith in the Charter’s framework vis-à-vis the maintenance of international peace as a whole. At the international level, the Corfu Channel case also contributed to the rule of law, as it provided the opportunity for the Court to reaffirm that the “policy of force” had no place whatsoever in the Charter era. The Court’s judgment 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. The Court also laid down the principle of States’ responsibility for illegal acts committed on their territory, a topic that is still very relevant today, especially in relation to the fight against terrorism, cyberattacks and transboundary environmental damage. At the same time, the Corfu Channel case gave the Court the opportunity to test some of its procedural tools for the first time, when it exercised jurisdiction based on forum prorogatum, that is to say, consent to the jurisdiction of the Court given by the respondent after the initiation of proceedings. The basis for that 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 their opinion on issues of a technical or scientific character. 2/51 20-17735 S/2020/1286 The same may be said about the 1971 advisory opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). As the Council may recall, that case arose from the decision of the apartheid regime 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. Similar to the Corfu Channel judgment, the Namibia advisory opinion also contributed significantly to the rule of law at the international level, as it was the Court’s first opinion to fully take into account the fundamental principle of equal rights and the self-determination of peoples enshrined in the United Nations Charter. The Court noted in the advisory opinion, 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 also 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 self-determination applicable to all of them”, including the territory of South West Africa (Namibia). 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 that attached to resolution 276 (1970) of the Security Council, paved the way for concrete actions that later facilitated the access of Namibia to its independence. There are also less visible ways in which the Court and the Council contribute to each other’s work and thus cooperate with each other — mainly through their respective contributions to the development of international law and, hence, to the strengthening of the international rule of law. A few examples here will suffice. For instance, the Security Council has increasingly used international law as a parameter to identify threats to international peace and security. That was the case with resolution 1296 (2000), in which the Council made the link between violations of international law and threats to international peace and security. Some 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” (resolution 1296 (2000) para. 5). In addition to using international law as a parameter for determining the existence of threats to peace, the Council has also used it to address such threats. For instance, the Security Council expanded the scope of the rules of international law to non-State actors in order to maintain international peace and security. The Court has consistently supported the Security Council’s mission to maintain international peace and security. I will mention here only a few examples, starting with the confirmation by the Court, in its advisory opinion on Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), that the Security Council could establish peacekeeping forces that 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. Similarly, the Court has clarified how to interpret and determine the binding character of Security Council resolutions in its advisory opinions on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) and 20-17735 3/51 S/2020/1286 on Accordance with international law of the unilateral declaration of independence in respect of Kosovo, respectively. Those two opinions have contributed to the effectiveness of Council resolutions by removing any doubts that the addressees of such resolutions may have had with regard to their legal value or their interpretation, which must be resolved if they are to be appropriately implemented.
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