Senator Moynihan and the World Court - Daniel Patrick Moynihan

National Review, August 24, 1984 by C. Dickerman Williams

The UNITED STATES' withdrawal for two years from the jurisdiction of the World Court in matters relating to Central America has caused a furor among, notably, such experts in international law as Senator Moynihan. In a commencement address at Syracuse University, Senator Moynihan accused Allan Gerson, legal advisor to Ambassador Jean Kirkpatrick, of ignorance not merely of the law, but of the "history of our country," on the basis of an Op-Ed article by Mr. Gerson published in the New York Times. Senator Moynihan added that the United States has acted throughout with "ineptitude and arrogance."

These comments were quoted and adopted by Mr. Anthony Lewis, a columnist for the New York Times, in highly emphatic terms.

Mr. Gerson had suggested that if the dispute with Nicaragua was to be properly aired the appropriate forum was either the UN Security Council, the OAS (Organization of American States), or the multilateral negotiating effort known as the Contadora process--not the World Court. That was the substantive issue between Messrs. Moynihan, Lewis, and Gerson: which body was the more appropriate forum to resolve the Central America dispute: and, more specifically, whether the World Court has jurisdiction to hear Nicaragua's complaint without the express consent of the United States.

To suggest that Allan Gerson is ignorant of international law is something of an absurdity in itself. He has, to put it mildly, spent far more time and effort on international law than either Senator Moynihan or Mr. Lewis. He holds a doctorate in international law from the Yale Law School, and he has published a book and numerous scholarly articles in the field. He also holds the position of professorial lecturer in international relations at the John Hopkins University School of Advanced International Studies, where he teaches a seminar on international law and diplomacy.

As for the question under dispute, the United States withdrew for a period of two years its voluntary submission to the jurisdiction of the World Court in matters relating to Central America. The United States said that it viewed the complaint filed against it by Nicaragua in the World Court as simply a way to avoid engaging in good-faith negotiations in the Contadora process. The United States also said that the harbor mining of which Nicaragua complained in particular was but one feature of the hostilities between Nicaragua, the United States, and EL Salvador, which have been going on for several years. The United States, like the governments of El Salvador, Honduras, and Costa Rica, has of course long maintained that Nicaragua has been the aggressor.

But Senator Moynihan was apparently unpersuaded, and, rather than awaiting the ruling of the World Court on the merits of the U.S. defense, he rushed to deliver his own judgment.

Senator Moynihan's tirade against Mr. Gerson for proposing alternative forums to the World Court is specifically based on the senator's interpretation of Article 33 of the United Nations Charter, which says:

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security shall, first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. Senator Moynihan concluded: "Clearly, the World Court is entitled to adjudicate such cases."

But, quite to the contrary, Article 33 is anything but a clear grant of jurisdiction--that is, power to adjudicate. Article 33 is first of all a provision found in the Charter, a different and separate document from the statute creating the World Court and defining its jurisdiction.

Secondly, to suggest that parties to a dispute of it by some method "of their own choice," including "judicial settlement," no more confers jurisdiction on the World Court than it confers jurisdiction on the United States District Court for the Southern District of New York, the High Court of Judicature of Great Britain, or the Court of Cassation of France. Jurisdiction is conferred by a constitution or statute that provides and has the authority so to provide.

In short, Justice Moynihan would rule that the jurisdiction of the World Court is prescribed in a document that has nothing to do with its jurisdiction, while overlooking the very statute that does in fact define it.

In sharp contrast to Article 33 are those articles of the UN Charter relating to the Security Council. Article 24 provides that:

In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security . . .

Under this provision it has become the practice of states complaining about the use of force to take their grievances to the Security Council. The frequent hearings of such cases by the Council are usually shown on public TV and sometimes on commercial TV channels and are of course reported in the press. The public is thus familiar with the practice.