Taha Wiheba, “A Primer on the Relationship between the Security Council and the International Court of Justice,” HLS PILAC UNSC Primer Series, Nov. 2024

Executive Summary

The Security Council and the International Court of Justice both play a crucial role in the pacific settlement of disputes and, thereby, in the maintenance of international peace and security. In recent years, the Security Council has been perceived by many as faltering in this role, while States have increasingly placed their trust in the Court. The Charter of the United Nations provides for ways in which the Council and the Court can interact to reinforce the international rule of law, to promote peace and security, and to enhance each other’s legitimacy. Many of these avenues for interaction remain underutilized since the establishment of the United Nations.

The Council and the Court are both principal organs of the United Nations. The Security Council’s primary responsibility is the maintenance of international peace and security, while the Court serves a legal function as the United Nations’ principal judicial organ. Both have the power to impose binding obligations on Member States: the Security Council through its decisions, and the Court through its judgments and orders.

These organs interact in several ways. The Security Council plays an important role in electing individuals to serve as judges at the Court and in opening the Court to States that are not Members of the United Nations. In interpreting the Charter of the United Nations, the Court has helped to define the Security Council’s powers and responsibilities. Although it has no formal power of judicial review, the Court has also interpreted Security Council resolutions.

The Security Council may recommend that parties to a dispute that poses a threat to international peace and security refer their dispute to the Court. The Security Council may also request from the Court an advisory opinion on any legal question, though, in over seventy years, it has done so only once. The Security Council also has the power to make recommendations or decide upon measures to give effect to a judgment of the Court when a party to a case fails to perform its obligations under that judgment. Yet, notably, the Council has never exercised that power.

States elected to the Security Council may wish to consider how they can leverage their position to utilize underused provisions in the Charter concerning the relationship between the Security Council and the International Court of Justice. For example, States may consider employing the Security Council’s power to help give effect to judgments of the Court and to request advisory opinions from the Court. Non-permanent members of the Security Council may also wish to benefit from the increased influence that members of the Security Council possess, as compared to the General Assembly, during elections of judges to the Court.

About This Primer Series

Despite the extraordinary authority placed in the United Nations Security Council, relatively little is known about its day-to-day workings outside its five permanent members and UN support staff. Indeed, the permanent members benefit from decades of continuous experience, as well as relatively large teams in New York and at their respective capitals devoted to international law and policy matters. Members elected for a two-year term at the Council often do not possess equivalent expertise, resources, and personnel. In a series of primers, HLS PILAC seeks to help fill an arguable informational gap concerning international law and the Council between the permanent and elected members. Building off a 2020 general primer for elected members published by HLS PILAC, these new analyses are intended to furnish elected members with important additional information that they can use as they see fit. The primary target audience includes current and future elected members of the Council, in particular those States’ legal and policy advisers. The series’ objective is not to proscribe or prescribe particular approaches but, rather, to apprise States of certain key issues that may be borne in mind in navigating engagements with and at the Security Council.