YouSaid · the spoken record

Judge Owada

lines on the record
31
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2018-05-17
most recent
2018-05-17
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1
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un-security-council

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  1. “The authority, judicial expertise and commitment of the Court to the promotion of the rule of law in today's world will, we hope, make a significant contribution to the work and the activities of the Security Council in dealing with this issue and burning issues in the context of the current situation relating to how to effectively maintain international peace and security, as this is the Council's primary responsibility under the mandate given it by the Charter.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  2. “The Security Council, which has the primary responsibility for the maintenance of international peace and security, has a wide spectrum of options on how to perform its functions effectively in achieving its goal. I hope that my statement today can make a modest contribution to a reflection on the possibility of the role that the International Court of Justice, as the principal judicial organ of the United Nations, could play in this regard.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  3. “Recent notable examples include the opinions on the Legal consequences ofthe construction of a wall in the occupied Palestinian territory (see A/ES-10/273) and on the Accordance with international law of the unilateral declaration of independence in respect ofKosovo (see A/64/881), on which the Court gave its opinion in, respectively, 2004 and 2010. These examples demonstrate that the advisory proceedings of the Court should be used also for promoting the activities of the Security Council. Iwish to conclude my brief statement by commending the foresight of the drafters of the Charter, who created a flexible and interconnected organizational structure to ensure proper institutional support for the lofty aims of the United Nations, namely, the promotion and maintenance of international peace and security.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  4. “Thirdly, and lastly, it is hoped that the Security Council could consider the possibility of making use of the advisory opinions of the Court in relation to the activities of which the Security Council is seized under Article 96 of the Charter. In terms of statistics, 26 requests for advisory opinions have been made so far, giving the Court the opportunity to offer its own advisory opinions. However, there have been very few requests from the Security Council, except for the Namibia case to which I referred earlier. By way of comparison, the General Assembly has so far made 15 requests. In replying to those requests, the Court has contributed, we believe, to the work of the respective organs by clarifying the bigger issues involved in a given question.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  5. “Here the Security Council could have a meaningful role to play in monitoring compliance with the Court's decisions, even when the recommendation is not formally adopted under Article 94, paragraph 2, of the Charter. At least we could consider how the institutional link between the Court and the Council, as provided for in Article 94 of the Charter, particularly the potential involvement of the Council, could enhance, formally or informally, the institutional reassurance for the parties to the dispute about compliance with the Court's decision and, through that, enhance the rule of law in the international community. Such involvement of the Security Council in the post-adjudication phase of a dispute would, in my view, strengthen the rule of law through the interaction between the two United Nations organs.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  6. “Secondly, with regard to the other example I provided at the beginning of my statement, the Security Council can have a greater active role in the post-adjudication phase of a dispute that has beenjudicially settled by the Court. Although the number of reported non-compliant judgements is not very large, any disregard or negligence on the part of the parties relating to the implementation of a decision of the Court is regrettable and not to be welcomed. Non-compliance by one of the parties with a judgment of the Court can easily complicate the situation subsequent to the delivery of the judgment, as exemplified by the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America).”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  7. “First, it is hoped - at least on the part of the Court - that the Security Council could pay more attention to its discretionary power under Article 36, paragraph 3, of the Charter, by which it can make recommendations to refer a legal dispute to Court. The significance ofthe precedent of the Corfu Channel case, to which I referred, would demonstrate how the basis of that argument could still be valid. Regrettably, however, it has become an isolated precedent. I would therefore invite the Security Council to take inspiration from that early instance of constructive cooperation between our institutions and consider additional possibilities under Article 36 of the Charter.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  8. “I hope that those examples show that the Court can make an active contribution to reducing tensions in conflict situations and preventing the aggravation of a dispute, while working in parallel with the Security Council. Let me address my final point, which includes some suggestions for the Security Council and the Court on strengthening the role of maintaining international peace and security. Before concluding my statement, let me draw the Council's attention to the question I posed at the beginning of my presentation, namely, how the Security Council and the Court can, or should, relate to each other with regard to concrete cases or situations. For the sake of discussion, I would like to add three observations.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  9. “The Security Council was closely monitoring the situation concerning the Democratic Republic of the Congo at the same time. In June 2000, the Council adopted resolution 1304 (2000), which demanded that all parties refrain from any offensive action, and that same month the Court indicated provisional measures whereby both parties were ordered to take all measures necessary to comply with all of their obligations under international law, explicitly including those under resolution 1304 (2000). While the eventual non-compliance of the provisional measures of the Court under a resolution is regrettable, the case illustrates that the Court can complement the activities of the Security Council by legally scrutinizing and analysing the issue of compliance with regard to the relevant Security Council resolutions.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  10. “Although the Court's immediate objective and purpose is a strictly judicial one, namely, to prevent irreparable damage from occurring until the delivery of the final judgment, nevertheless the measure also contributed in a practical way to the efforts of the Security Council to maintain peace and security in the region. In addition, the Courtjoined the Council in drawing the parties' particular attention to the important role of ASEAN in establishing a dialogue between them. The third and final example I wish to give today is the conflict situation in the Great Lakes region that erupted in the 1990s. In that situation, the Court was seized of the case Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda).”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  11. “However, the armed clashes did not subside and one of the parties to the conflict, Cambodia, brought the dispute before the Court in April 2011 in the form of a request for an interpretation of the judgement in the 1962 case. Simultaneously, the applicant requested that the Court also indicate provisional measures of protection because of the urgency of the matter. In granting the request for the indication of provisional measures, for the first time in its history, the Court set up a provisional demiIitarized zone to be kept provisionally free of all military personnel.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  12. “Thailand), in which the Court found that the temple was situated on territory under the sovereignty of Cambodia, disagreement persisted between the two neighbouring States as to the extent of the geographical scope of the sovereignty. As a result of the ongoing armed conflict over the issue, the matter was brought to the Security Council, which issued a press statement in February 2011 (SC/10174) entitled "Cambodia-Thailand Border Situation", which exhorted both sides to show restraint, establish a ceasefire and engage in dialogue. The Security Council also expressed its support for the active efforts of the Association of Southeast Asian Nations (ASEAN) to find a peaceful resolution of the matter.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  13. “To bring about lasting peace in the region, it was essential that the international community could rely not only on the Security Council to take measures to make it possible to determine the criminal responsibility of individuals for their acts, but also on the other principal judicial organ of the United Nations - the International Court of Justice - to place on record the degree of accountability of the respondent State for not having taken the necessary measures to prevent genocide. A second illustrative example is the situation that arose in 2008 in the area of the Temple of Preah Vihear, situated on the boundary between Cambodia and Thailand, as a result of competing claims of territorial sovereignty between the two States. Despite the Court's judgment in 1962 in the case Temple of Preah Vihear (Cambodia v.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  14. “In parallel to those activities by the Council, the International Court of Justice was also involved in playing an important role in determining the international responsibility of a State given its alleged commission of internationally wrongful acts in relation to the conflict. I refer here to the two cases that came before the Court, namely, the application of the Convention on the Prevention and Punishment of the Crime of Genocide - the first brought by Bosnia and Herzegovina against Serbia and Montenegro and the second by Croatia against Serbia.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  15. “At the same time, because of complex and more important issues they raise, they are also at the core of disputes that can be brought before the Court as legal matters. One tragic example is the bloody conflict in the Balkans following the collapse of Yugoslavia in the early 1990s. In tandem with the many initiatives by the Security Council to deal with the conflict, including the deployment of a large-scale peacekeeping force, the creation of the International Criminal Tribunal for the Former Yugoslavia with a mandate to prosecute the culprits as individuals for their heinous criminal acts was an important part of efforts by the Security Council to maintain international peace and security.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  16. “For the sake of the discussion today, I shall refer to three examples that illustrate how the Court and the Security Council can interact with each other to contribute to the maintenance of international peace and security. All three cases relate to situations arising from armed conflicts or clashes in border areas that would require a response from the Security Council. For example, the Security Council would act to conduct peacekeeping initiatives. At the same time, a legal clarification of the situation by the Court would be extremely important in the same context because of the very nature and gravity of conflict situations between States, which constantly require the Council's attention.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  17. “In that connection, in addition to dealing with specific bilateral disputes between States, the International Court of Justice has also been called upon to deal with cases, both contentious and advisory, that relate to the same set of events that form an integral part of the situations that come before the Security Council. It can safely be said that there is no exclusive authority pertaining to either of the two organs over a situation, which in most cases include overlapping aspects of law and politics. Indeed, as I already mentioned, the clarification of certain legal aspects of a case by the Court can benefit the Council in arriving at a comprehensive solution to the situation in question, bearing in mind the legal implications of the issues involved.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  18. “In that way, an effective institutional structure could indeed be in place, and the United Nations, and by extension the international community, could benefit from its greater use of those three relevant provisions that are provided for in the Charter. I will now turn to the second part of my statement, on the interaction between the substantive work of the Court and the activities of the Security Council, which are not necessarily provided for in the Charter in its express terms. Let me address some areas of substantive interaction between the Court and the Security Council that go beyond the linked institutional framework that I have mentioned.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  19. “In concluding my brief remarks on that aspect of such interrelations, namely, the institutional link between the Court and the Security Council, I find it interesting to note that the Charter's provisions on this point, although succinct, manage to be quite flexible and comprehensive, allowing the possibility of the Council encouraging States to bring their disputes to the Court, support States in the event that they have issues regarding the compliance of an International Court judgement and give them time to request that legal questions of significance in relation to the work of the Council be considered by the Court.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  20. “An apposite precedent in which the Security Council requested an advisory opinion of that nature on an issue that was directly raised before the Security Council regarding the activities of the Council was a case brought in July 1970 on the legal consequences for States of the continued presence of South Africa in Namibia. It is recalled that the discussion on the issue within the Council continued in tandem with the Court's consideration of the legal questions involved. Ultimately, the Court's opinion helped to strengthen the Security Council's position regarding the line of conduct expected of States in order to resolve that political impasse.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  21. “Rather, the purpose is to give an authentic opinion on that matter to other United Nations organs, including the Security Council, with a view to clarifying the issues involved in a given situation. With reference to situations before the Security Council relating to the maintenance of international peace and security, the advisory function of the Court could be a very useful tool by elucidating the relevant and legal questions involved in a situation, which may assist the Council in its consideration of a complex state of affairs of the situation at hand, and could be very helpful.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  22. “Admittedly, that is not a provision for the direct enforcement of the Court's judgment by the Security Council. It nevertheless provides a useful and precise framework within which the Council can ensure that the decisions of the Court be given effect. Moreover, that provision accords to the parties that bring cases to the Court a broader sense of institutional reassurance that complying with the Court's decision is of paramount importance to the international community. The third provision I wish to mention is Article 96 of the Charter, under which the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. Unlike the Court's contentious procedure, its advisory function is not aimed at a resolution, per se, of the conflict in question.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  23. “The second aspect to that institutional interaction is provided for in Article 94, paragraph 1, which states that "Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party." I am happy to say that there are very few cases where there has been non-compliance with a judgment of the Court. However, in the event of a case of non-compliance, Article 94, paragraph 2, can be put in motion. According to that provision, "If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment".”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  24. “The Security Council should take into consideration the fact that, as stated in Article 36 of the Charter, "legal disputes should as a general rule be referred by the parties to the International Court of Justice." It was pursuant to that Charter provision that the Security Council recommended that the United Kingdom and Albania defer their dispute with regard to the Corfu Channel to the newly established Court at that time. That historically notable example of institutional complementarity was all the more significant as it resulted in the very first contentious case brought before the Court. That case clarified the legal aspects of the dispute, thereby leading to its resolution.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  25. “That is why the institutional underpinning of our activities deserves some crucial attention. There are a number of important provisions that are meant to strengthen the coordination and cooperation between the Court and the Council as we strive to discharge our respective roles in maintaining international peace and security. In that regard, I would like to highlight the following three provisions. First, in relation to its function in dispute settlement between Member States, the Security Council is empowered, at any stage of a dispute, to make recommendations as part of its duty.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  26. “In my statement today, I will begin by saying a few words about the international mechanism of links between the Council and the Court provided for in the Charter. I will then refer to several specific instances whereby the involvement of the Court as the adjudicative body working together with the Council might be called on to deal with a situation in a synergetic manner, with each organ approaching the given situation from its respective perspective. I will therefore begin with the institutional link between the Court and the Security Council as provided for by the Charter. Under the Charter, the Security Council is assigned functions of an executive nature, whereas the Court exercises purely judicial functions; that is the difference. Nevertheless, there is a correlation between those two roles.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  27. “That point is fundamental to today's discussion in the sense that the constitutional framework of the United Nations envisages an organic and synergetic relationship between the Security Council and the Court, with the potential of peace being reinforced by combining political and judicial approaches to finding solutions. Beyond the division of power or competence of the two United Nations organs, the question to be discussed in this context, to my mind, is the following: In order to realize the ultimate goal of the United Nations to save succeeding generations from the scourge of war, which dominated the world before 1945, how can and should the Security Council and the Court interrelate with one another in concretely resolving disputes and situations?”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  28. “In particular, Article 2, paragraph 3, of the Charter specifically provides that all Members of the United Nations shall settle their disputes "by peaceful means in such a manner that international peace and security, and justice, are not endangered." n I underscored the insertion of the words and justice" because the inclusion of the element ofjustice in that context clearly signifies that international peace and security are to be maintained in parallel with the realization ofjustice. For that reason, the International Court of Justice can play a role in actively contributing to the maintenance of peace and security in parallel with the Security Council, which bears the primary responsibility for that purpose.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  29. “During the crucial post-war period, in fact, it was paramount to build a robust structure that could ensure international peace and security through the creation of a truly effective international organization in this area. That is highlighted by the fact that Article 1, paragraph 1, of the Charter refers to the maintenance of international peace and security as one ofthe primary purposes ofthe United Nations. Of utmost importance, it is to be noted that such a purpose is to be achieved, "in conformity with the principles of justice and international law".”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  30. “I therefore wholeheartedly welcome and embrace the present initiative of the Polish presidency to hold an open debate on upholding international law within the context of the maintenance of international peace and security. In my view, this is a most opportune moment to provide a platform for wider discussion, especially within the context of a number of volatile situations that, sadly, we face in the world today. Let me begin by bringing to the Council's attention the common roots of our two institutions and their complementary roles. Both the International Court of Justice and the Security Council were established in 1945 by the Charter of the United Nations as principal organs of the United Nations.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source

  31. “Judge Owada: It is a great privilege for me once again address the Security Council on matters pertaining to our shared endeavour to achieve international peace and security. As former President and a senior member of the International Court of Justice, I make my statement today on behalf of my esteemed colleague His Excellency Judge Abdulqawi Ahmed Yusuf, who is now the President of the Court and, regrettably, is unable attend this Security Council meeting. I recall that during my own mandate as President of the Court, from 2009 to 2012, I had opportunities on several occasions to emphasize the constructive dialogue that these annual meetings foster between the Court and the Security Council.”

    2018-05-17 · UN Security Council · Security Council, S/PV.8262 (2018) · source