The World Court US case will test its credibility
Boston — The ICJ has grappled with a spate of claims over the years, from fishing rights to land disputes. But it has tried only a select number of cases,
less than 50, mainly because of the reluctance of
many UN members to submit fully to the court's authority.
Scholars, government spokesmen, and court officials
agree the court is a symbol of the quest for peacefully resolving
international disputes through the rule of law.
The sharpest criticism against it is its lack of clout
to enforce its decisions.
It's almost 40 years old. But the leading forum for adjudicating disputes between nations - the International Court of Justice (ICJ) - may finally be getting a major test of its effectiveness. At stake is the long-range
credibility of this often criticized, sometimes maligned, legal arm of the United Nations.
There seems to be general agreement - among United States government officials, legal scholars, and those connected with the court - that Nicaragua's present claim that the United States supported military attacks against it in possible violation of international law is perhaps the most unusual case the tribunal has ever faced. But consensus ends there.
The case involves internal political and national-security questions in a setting of armed conflict. And for this reason, in part, the US is resisting the ICJ's authority even after the court has pronounced that it has jurisdiction in the case.
And if the ICJ, or the World Court (as it is often referred to), ends up deciding the US-Nicaragua dispute, issues regarding not only the appropriateness of the arena, but also the validity of its rules and procedures, its ability to rule on questions of peace and national security, and the composition of the tribunal itself could upstage the outcome of the case.
Set up under the United Nations Charter in 1945, the ICJ has grappled with a spate of claims over the years, from fishing rights to land disputes. But it has actually tried only a select number of cases, less than 50, mainly because of the reluctance of many UN members to submit fully to the court's authority.
In fact, more than two-thirds of 158 nations technically under ICJ jurisdiction place strict limits on the court's authority in resolving their disagreements with other states.
In the 1950s, Australia, Britain, and India bucked the court in disputes with other states. Two decades later, Canada rebuffed a ruling on marine pollution that could have triggered a dispute with the US. And in the 1970s France rejected an ICJ examination of charges by Australia and New Zealand that French nuclear tests in the Pacific were in violation of international law.
In the Nicaraguan matter, it is the US that has formally challenged the court's jurisdiction. ''The court is not an appropriate forum to make this type of decision,'' says State Department lawyer Patrick Norton. ''The UN through the Security Council is.''
Prior to the court's pronouncement that it would probe Nicaragua's claim in late November, US officials had argued against ICJ jurisdiction in the matter, saying it was a multilateral regional problem outside the court's authority. They also questioned Nicaragua's standing, on the basis that the Central American nation ''purposely and deliberately'' refused to accept the court's compulsory jurisdiction for many decades by failing to file a ratification doctrine.
In deciding to take the case, only one ICJ jurist - the US representative to the court, Judge Stephen M. Schwebel - contested Nicaragua's standing. But Judge Schwebel made it unanimous in the final vote favoring the court's decision that it had jurisdiction.
Whether or not the US chooses to submit further to court scrutiny of Nicaragua's complaint, State Department officials are clearly concerned with the political ramifications.
Some say the composition of the 15-member court is stacked against American interests, with significant communist bloc and third-world representation. But others point out that even America's Western friends, including Britain, France, and West Germany, voted against it on jurisdiction in the Nicaraguan matter.
Depending on the ruling, official condemnation by the ICJ of US activities in Nicaragua could be very embarrassing in the world community. Specific sanctions, including financial reparations, are not likely, however. The court's ruling is binding, but not directly enforceable. It could, however, spur a move within the UN toward censure of US actions. But in this forum the US holds a Security Council veto.
Boycotting or ignoring the court's authority in the case could also lead to other problems - including negative domestic and world opinion. Critics point out that the US was highly critical of Iran's disregard for ICJ jurisdiction during the hostage crisis.
In the hostage case, the court proceeded to find facts even without the cooperation of Iran (as it likely will in the Nicaraguan case if the US refuses to participate).
The ICJ handed down a six-part decision in May 1980 - six months after the US lodged its complaint - ordering release of the American hostages from the US Embassy in Iran and suggesting that Iran was liable to pay reparations for its actions.
A year later, after the hostages were freed, the US requested that the court dismiss its claim for damages. But a separate tribunal (unconnected to the ICJ) continues, even now, to look at individual and business claims against the Iranian government.
Regardless of how, or when, the Nicaraguan claim is resolved, the matter prods a further look at the role of the International Court of Justice and its effectiveness in keeping peace.
Scholars, government spokesmen, and court officials differ in their intepretations of the value of the ICJ. But most agree that it is a symbol of the quest for peacefully resolving international disputes through the rule of law. The sharpest criticism against it is its lack of clout to enforce its decisions. However, framers of the UN charter seemed to fear that this type of authority could be overused, or abused.
Jeane Kirkpatrick, US ambassador to the UN, described the court as a ''semilegal, semijudicial, semipolitical body, which nations sometimes accept and sometimes don't.''
Leo Gross, a professor emeritus at the Fletcher School of International Relations, and veteran ICJ analyst, is concerned about the court's bias toward the UN Security Council members who appoint its members.
He says he opposes the inclusion of judges from ''countries which, in principle, reject the (general) jurisdiction of the court.'' He singles out the ''Soviet Union, Polish, Arab, and third world'' nations - all of whom at present have representatives on the 15-member tribunal.A State Department official, who asked not to be identified, says the court's authority is greatly diminished if all parties to a dispute don't voluntarily agree to its jurisdiction.''The purpose of international law is to settle disputes between governments. Generally it works only when there is a prior agreement to be bound,'' he says. This situation, he explains, challenges the credibility of the ICJ and is responsible, in part, for loss of respect for international institutions.Others, however, insist that the court's actions and opinions have a very real impact on public opinion and, in effect, prod bilateral agreements that would not be forthcoming otherwise.Richard Gardner, a professor of international law at Columbia University, says that over the years the court has been most effective in law-of-the-sea cases that deal with delimitation of maritime boundaries on the continental shelf.In 1982, the ICJ reviewed such a dispute between Libya and Tunisia over the Gulf of Gabes. And this past fall it handed down a decision in the Gulf of Maine/Georges Bank case - ending a 15-year fishing rights controversy between the US and Canada.While praising the court for its work in the maritime area, Professor Gardner also concedes that it is ''least effective in cases that touch the raw nerve of national security.''He quickly adds, however, that the US would be ill-advised to boycott further ICJ proceedings in the Nicaragua matter.''We shouldn't underestimate the court of public opinion,'' the Columbia professor warns. ''We don't want to isolate ourselves from the rest of the world.''A flat-out defender of the ICJ is Harvard Prof. Abram Chaves, a former State Department official who is now serving as a member of the Nicaraguan defense team.''The court is a well-respected judicial organ. Its members are legal scholars in international law.'' Professor Chaves stresses that the jurists are bound to interpret treaties and other international agreements. ''They don't vote their countries directions,'' he says.Seymour J. Rubin, executive director of the Washington, D.C.-based American Society of International Law, seems to have mixed feelings about the ICJ. On the one hand, he calls it ''a little known body . . . very inactive in international affairs.''Yet, Mr. Rubin too stresses that the court is ''not useless'' in some matters, especially those where all parties to a dispute agree to adjudication.But Rubin says it must at times acknowledge its limitations and defer to the Security Council - particularly in matters involving peace and security.Over the years, there have been numerous proposals for reform of the ICJ. After debate at several sessions of the General Assembly, a resolution was adopted in 1974 to strengthen the court.Among the recommendations were: inclusion in all treaties of a provision that would give the court authority over disputes arising from differences in interpretation or application; acceptance of the compulsory jurisdiction of the court, with as few reservations as possible; giving greater recourse to the court for advisory opinions from UN organs and specialized agencies.
Current World Court JudgesThe Court consists of 15 judges elected for renewable nine-year terms. * Indicates judge whose term expires on Feb. 5, 1985. **Indicates newly elected judges. Term expiresPresident Taslim Olawale Elias 6 (Nigeria) 1985Vice President Jose Sette-Camara 6 (Brazil) 1988Roberto Ago 6 (Italy) 1988Mohammed Bedajaoui 6 (Algeria) 1988Sir Robert Jennings 6 (United Kingdom) 1991Abdallah Fikri al-Khani * 6 (Syria) 1985Guy Ladreit de Lacharriere 6 (France) 1991Manfred Lachs 6 (Poland) 1985Keba Mbaye 6 (Senegal) 1991Platon D. Morozov 6 (USSR) 1988Hermann Mosler * 6 (Fed. Rep. of Germany) 1985Shigeru Oda 6 (Japan) 1985Jose-Maria Ruda 6 (Argentina) 1991Stephen M. Schwebel 6 (United States) 1988Nagendra Singh 6 (India) 1991Jens Evenson ** 6 (Norway) 1994Ni Zhengyu ** 6 (China) 1994