Behind US rebuff of World Court
Does or doesn't the United States spurn the World Court? That depends. At the moment, State Department lawyers are in The Hague arguing an important case before a panel of the International Court of Justice, as the court is formally known. The case concerns a dispute with Canada over the maritime boundary in the Gulf of Maine. Both parties have agreed to abide by the court's ruling.
Yet, paradoxically, the Reagan administration has announced it will reject the court's jurisdiction in cases involving Central America for the next two years. It decided on this step after Nicaragua filed a complaint with the court charging that the US Central Intelligence Agency has illegally mined its ports and directed other military acts against it.
This rejection of World Court authority - the first since the US accepted the court's compulsory jurisdiction in 1946 - has stirred criticism. It is not unusual for a nation to refuse the court's jurisdiction and a number have done so in the past. This is why international criticism of the US has been fairly restrained.
But many diplomatic and legal experts charge that the administration has handled the matter badly, failing to give the court the required six months' notice. The impression conveyed, they say, is that the US is snubbing the rule of law as a fundamental principle in international relations.
On Friday, Mexico strongly criticized Washington for mining Nicaragua's harbors and for refusing to accept World Court authority in the case. ''No state can capriciously withdraw from the international legal system,'' Mexico's Foreign Minister Bernardo Sepulveda Amor stated.
Administration officials insist the United States is not rejecting the authority of the World Court. The Central America issue is an exception because Nicaragua is using the court as a ''propaganda forum'' and a ''diversionary tactic,'' they say. Nicaragua's aim, say US legal officials, is to deflect attention from the whole range of economic, political, and security questions being negotiated by the so-called Contadora group - Panama, Venezuela, Colombia, and Mexico.
Furthermore, US officials say, Washington cannot litigate an issue that would force it to disclose its secret intelligence activities.
Critics, however, view the administration action as damaging to American credibility and prestige.
''It's an unfortunate move,'' says Lee Marks, a State Department legal adviser in the Carter administration. ''It will make it more difficult for the US to use the court when it wants to - as it did when it took the Soviet Union to court for not paying its (United Nations) assessments, or in the case of the Iranian hostage crisis. It is difficult to withdraw on one hand and maintain respect for law on the other.''
To the administration argument that the Soviet Union does not accept the World Court and plays by different rules, critics respond that is precisely what sets the United States apart and gives it moral authority.
''The United States remains the preeminent status-quo power in the international system and it is shocking that such a power participates in tearing down institutions that promote order and respect for law rather than pursuing the postwar, bipartisan policy of trying to shore them up,'' comments Charles W. Maynes, editor of Foreign Policy magazine and a former diplomat.
The American Society of International Law (ASIL), holding its annual meeting as the World Court issue came to the fore, also criticized the administration for rejecting court jurisdiction in the Central America question. A majority of members present voted for a resolution calling on the administration to rescind its decision.
International law experts say the administration would have been wiser simply to take on the Nicaraguan legal challenge and defend its position at the World Court. As the court now takes up the question of whether or not it has jurisdiction in the Nicaragua case, some suggest the US would be on solid ground to argue in The Hague that the court has no jurisdiction.
''A persuasive and substantial argument can be made that the issues raised by Nicaragua are not justiciable and the court should decline jurisdiction,'' Lloyd Cutler, former counsel to President Carter, said in an ASIL panel discussion on Saturday. Under the UN Charter, Mr. Cutler suggested, responsibility for dealing with illegal acts of aggression or threats to the peace is assigned to the Security Council. Such acts raise political as well as legal issues, he added, and are more amenable to resolution by nonjudicial bodies, which have more power to take remedial measures than does the World Court.
Created in 1945, the International Court of Justice has heard fewer than 30 cases. The US is one of 50 countries that has accepted the compulsory jurisdiction of the court, subject to various provisions and exceptions.
Although the court's usefulness is limited, the US has nonetheless sought to encourage the institution as a means of peacefully resolving international disputes and enhancing respect for international law.
What concerns many critics is not only the US rejection of World Court jurisdiction, but also what is seen as a pattern of disregard for international institutions. In an address to the ASIL last week, former US ambassador to the UN Donald McHenry cited a series of Reagan administration policies which he said represented a ''broad attack on the United Nations system and on the concept of the United States participation in any institution which the United States does not dominate.''
He noted, among other things, that the US stands alone in the World Health Organization against efforts to improve the use of baby formula; has notified UNESCO it intends to withdraw unless changes are made; has gone back on its pledge to increase funding for the soft-loan affiliate of the International Monetary Fund; and has refused to sign the Law of the Sea Treaty.
With respect to the harbor-mining issue, the Nicaraguan suit raises complex issues of international law. One is whether the US can come to the defense of El Salvador by military actions against Nicaragua without being asked to do so. The administration argues the UN Charter provision on collective self-defense gives the US the right to help El Salvador - by mining Nicaraguan ports, for instance. But some experts question whether the provision applies.
''There is no evidence that El Salvador has ever complained to Nicaragua or to any international body that Nicaragua is an aggressor,'' says Covey T. Oliver , outgoing president of the ASIL. ''Nor is there any agreement between the US and El Salvador that forms a collective self-defense unit under the UN Charter. We have acted unilaterally and without evidence that El Salvador wants us to act this way.''