Statement on behalf of South Africa by Ambassador J Matjila, International Court of Justice, Under the theme “Threat to international peace and security and its evolution through the practice of the Security Council and Court”, 31 October 2019
South Africa warmly welcomes President Yusuf to the Security Council today and wishes to share its views on the thematic discussion related to the “Threat to international peace and security and its evolution through the practice of the Security Council and Court”.
The preservation of peace has been the driving force in the evolution of international adjudication. The Security Council plays a significant role in ensuring peace and security. However, whilst it may have the “primary responsibility for the maintenance of international peace and security”, this does not mean that the Security Council alone has such a responsibility. The ICJ, through its jurisprudence, similarly plays a significant role in maintaining international peace and security.
Maintaining international peace and security by the International Court of Justice (ICJ) and the Security Council should be approached from the perspective of the United Nations Charter and the way it delimits competences between two principal United Nations (UN) organs and regulates the exercise of their parallel authority.
Whilst the Court is the principal judicial organ of the UN under Article 92 of the Charter; it is also an autonomous adjudicative body with the function, in terms of Article 38 of its Statute, of applying International Law to disputes between Member States as are brought before it.
The ICJ aims to maintain international peace and security through law. The Court has faced criticism as being an ineffective role player in achieving international peace and security, largely because of its jurisdictional architecture, which is based on consent. The ICJ also has to grapple with addressing complex issues which have political and legal dimensions that have the ability to threaten the international legal order.
Over the years, the Security Council and Member States have unfortunately failed to take advantage of the potential contributions the ICJ could make in maintaining international peace and security. This stands in contrast to the innumerable benefits Member States could gain by utilising such an important tool at its disposal.
It is thus that South Africa welcomes the advisory opinion which was delivered by the ICJ on 25 February 2019, on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965. South Africa made both written and oral submissions in support of Mauritius to the Court. South Africa therefore welcomes the conclusion by the Court that the detachment of the Chagos Archipelago from Mauritius before Mauritius became independent in 1968, was unlawful in terms of the international law principles applicable at the time, and the process of independence of Mauritius was therefore not lawfully completed.
The Security Council and Member States need to bear the provisions of the UN Charter in mind, particularly concerning the interaction of the two entities, including the possible role each entity could play in assisting the other in implementing its responsibilities. As an example, the United Nations was established at a time when threats to international peace were largely inter-state. Over the years, threats have changed and today many threats are presented by non-state actors. A shortcoming of the Court is its jurisdiction vis-à-vis non-state actors. However, the Security Council has the benefit that its mandate allows it to address such threats. The synergies between the Security Council and ICJ must thus be harnessed to achieve a collective goal of maintaining international peace and security.
Peace can be sustainable only if it goes hand-in-hand with justice. Therefore, when appropriate, the Security Council should encourage Member States involved in a situation that threatens international peace and security to resolve their disputes before the ICJ. This includes the Security Council requesting an advisory opinion from the Court on legal matters that may arise within its work.
The world continues to evolve and so do the threats posed to international peace and security. The Security Council and the Court have made invaluable contributions in the face of threats to international peace and security, and South Africa values the continued roles these two organs will play in the maintenance of future peace and security.
I thank you for your attention.
ISSUED BY THE DEPARTMENT OF INTERNATIONAL RELATIONS AND COOPERATION
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