The International Court of Justice and the Security Council: disentangling Themis from Ares

This contribution analyses three main issues which were raised both during the proceedings before the Security Council (SC) and later before the International Court of Justice (ICJ). The first relates to the nature and functions of these organs under the United Nations (UN) Charter and the Statute of the ICJ. In this regard, it appears that the SC assumed the role of apprentice sorcerer, shedding light on the two organs’ respective fields of competence through the ‘learning by doing’ approach, as well as on their different functions: the jurisdictional versus the executive. Indeed, in 1925, in the Mossoul Case the Permanent Court of International Justice (PCIJ) had already affirmed that the Council of the League of Nations could not be considered as a ‘tribunal of arbitrators . The second theme relates to the legal effect of a SC recommendation under Article 36(3) of the UN Charter, notably with regard to the establishment of the ICJ’s jurisdiction . The Corfu Channel case is the first and – until now – the only case for which the SC explicitly recommended the referral of a dispute to the ICJ under Article 36(3) of the UN Charter. This raises the question whether a SC resolution, adopted in accordance with Article 36(3), can constitute an autonomous head of ICJ jurisdiction. Last, but not the least, the question of whether the SC was acting in the context of Article 34 of the Charter having arisen during its meetings, the role of the SC as a fact-finder or ‘investigator’ will be reviewed. All these three topics share a common ground: the institutional interactions between two of the principal organs of the UN in the pursuit of their goals; furthermore, all of them reveal, especially from a perusal of the SC official records, that the UN organ upon which Member States have conferred the ‘primary responsibility for the maintenance of international peace and security’ (Article 24(1) UN Charter), was then acting in a still uncharted province of the Charter; hence, its practice would most certainly influence the interpretation of its relevant provisions.