H. E. MR. MOHAMED SIAD DOUALEH
AMBASSADOR, PERMANENT REPRESENTATIVE
OF DJIBOUTI TO THE UNITED NATIONS
BEFORE THE SECURITY COUNCIL ON
OPEN DEBATE IN CONNECTION WITH THE “UPHOLDING INTERNATIONAL LAW WITHIN THE CONTEXT OF THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY”
UNDER THE AGENDA ITEM
“MAINTENANCE OF INTERNATIONAL
PEACE AND SECURITY”
NEW YORK, 17 May 2018
Monsieur le Président,
Djibouti félicite la distinguée délégation de la Pologne conduite par Son Excellence M. Andrzej Duda pour la tenue de cet important évènement sur une question cruciale “Respect du droit international dans le contexte du maintien de la paix et de la sécurité internationales”. L’actualité sanglante de ces derniers jours démontre si besoin est, la dimension vitale du respect du droit international. Sous le prétexte fallacieux de la légitime défense, Israël a systématiquement eu recourus à l’usage de la force brutale et excessive, viole systématiquement et impunément le droit international et les droits humains des palestiniens. Nous exprimons notre profonde gratitude à nos briefers, à savoir Maria Luiza Ribeiro Viotti, Chef de Cabinet du Secrétaire Général et le Judge Theodor Meron, Président du Mécanisme pour les Tribunaux pénaux internationaux. Nous avons une pensée particulière pour Hisashi Owada, Judge à la CIJ qui va bientôt tirer sa révérence, après de longues et fructueuses années au service de la promotion du droit international. Nous saluons son dévouement et lui réitérons nos meilleurs vœux pour l’avenir
Consistency and full implementation of United Nations Security Council resolutions is critical in the maintenance of international peace and security. Eritrea continues to cynically defy all United Nations Security Council resolutions.
My country continues to face the threat of international peace and security that has been created by the unlawful use of force against Djibouti by Eritrea, the occupation of Djiboutian territory by Eritrean military personnel, and the refusal of Eritrea to account for Djiboutian prisoners of war captured in 2008. Threats of force continue to emanate from the Eritrean side and the risk of violent confrontation is once again high.
There is an urgent need for a dispute settlement mechanism. It would be Djibouti’s preference to have the dispute referred by mutual agreement to judicial settlement or arbitration. The result of either means settlement would be a legally binding judgement or award based on international law, which would assure both parties of a fair process and or equitable settlement that fully, finally and permanently resolve their dispute.
In response to your request to make specific contributions today, Djibouti would like to humbly submit the following observations:
1. Encouragement of Disputing Parties to Submit Their Dispute for Binding Judicial or Arbitral Settlement
There is precedent for this. In 1947, the Security Council recommended to the UK and Albania that their dispute over damage to UK ships caused by mines in the Corfu Channel be referred to the ICJ. They did so, and the Court rendered a Judgment that resolved the dispute.
Remarkably, since then the Security Council has been reluctant to encourage disputing States to submit their disputes to the ICJ or to arbitration. There is no good reason for such reluctance. Under Article 33 of the Charter, States are obligated to settle their disputes peacefully, and both judicial settlement and arbitration are listed as preferred means of settlement. (Ironically, under the League of Nations, the Council frequently encouraged States to submit their disputes to the Permanent Court for International Justice, the predecessor of the ICJ).
Some States on the Council might be reluctant to interfere with the principle of consent. Under this principle, no State may be compelled to submit to the jurisdiction of a Court or arbitral tribunal without first giving its consent. This is in recognition that each State is sovereign. However, there is no reason to be concerned here. The Security Council would not be compelling any State to go to court or arbitration. It would be using its influence to get disputing States to consent to it. This is an effective means of resolving disputes that, left unresolved, constitute threats to international peace and security.
2. Requesting the Secretary General to Use His Good Offices to Get the Parties to Agree to Judicial Settlement or Arbitration
As an alternative to working directly with the disputing parties, the Security Council can request the intervention of the Secretary General, and the use of his good offices to help the disputing parties agree on settlement of their dispute by one of the means listed in Article 33, including judicial settlement or arbitration. Recently, in January 2018, the Secretary determined, under the authority conferred upon him by Venezuela and Guyana in a 1966 treaty, that the dispute between the two States should be settled by the ICJ, and Guyana then filed an Application with the Court commencing proceedings. More use could be made of the good offices of the Secretary General to promote peaceful settlement of disputes by facilitating agreement between the parties to submit the dispute to judicial or arbitral procedures.
3. Greater Use of the ICJ’s Advisory Jurisdiction
On numerous occasions, the General Assembly has requested the ICJ to issue advisory opinions on the legal aspects of disputes, with the objective of assisting the UNGA in exercising its role of promoting peaceful settlements. In its most recent exercise of this power, the UNGA adopted a resolution asking the Court to pronounce upon the decolonization of Mauritius, and whether it has been lawfully completed.
The Security Council has requested an Advisory Opinion from the Court on only one occasion – on the status of Kosovo. Nevertheless, this is an important precedent. The Council should make greater use of its power to request Advisory Opinions, in order to promote peaceful dispute settlement in accordance with international law.
4. Encouragement of Ratification of International Human Rights and Humanitarian Rights Treaties. Without Reservations
Participation in the world’s most important human rights and humanitarian rights treaties is still not universal. A number of States still have not ratified the major conventions, or have ratified them subject to reservations excluding themselves from the treaties’ dispute settlement provisions. The Security Council could engage in a campaign to achieve universal acceptance of these treaties, and to encourage States not to exclude themselves from the dispute settlement provisions – or to encourage States that have already excluded themselves to remove their reservations.
These treaties include the Convention against Genocide, the Convention against Torture, the Convention against All Forms of Racial Discrimination, Convention on the Status of Refugees, Convention against All Forms of Discrimination against Women, Convention for the Suppression of Trafficking of Persons, etc.
5. Promotion of Judicial Recourse under International Human Rights and Humanitarian Rights Treaties
Where a State is responsible for horrendous human rights abuses, such as Myanmar in its campaign against its Muslim Rohingya population, the Security Council should considering encouraging one or more States, which are parties to the same conventions as Myanmar, to invoke their rights under the dispute settlement provisions of the conventions to bring Myanmar before an international court (the ICJ) or arbitral tribunal. (Only individual States Parties can bring lawsuits under these conventions; the Security Council cannot).
6. Encouragement of States to Accept the Jurisdiction of the ICJ
More than 70 States have submitted declarations voluntarily accepting the jurisdiction of the ICJ under its so-called Optional Clause (Article 36, paragraph 2) vis-s-vis other States that have made similar declarations. This is still a minority of States, however. The Security Council could encourage other States to accept the Court’s jurisdiction. This would not violate the principle of consent because there would be no compulsion, and submission to the Court’s jurisdiction would be entirely voluntary.
Thank you for your attention