Senator Moynihan and the World Court - Daniel Patrick Moynihan

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

No Takers

THE EFFECTUATION of decisions of the Security Council is dealt with by Articles 25 and 27. Article 25 provides that:

The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Although the Charter does not use the word "veto," in substance it grants a veto to the permanent members--China, France, the Soviet Union, Great Britain, and the United States--by requiring, per Article 27, that the permanent members concur in the passage of any Security Council resolution.

conceivably Article 33 might be read as authorizing the Security Council to make efforts to achieve a peaceful settlement by suggesting to the parties to any dispute that they submit their claims to the World Court. But it never has done so in a case involving charges of aggression and self-defense. The only case remotely to the point is the Corfu Channel dispute between Albania and the UK in 1948, but there the issues were much more narrowly defined and did not involve the use of force against the territory of another state. The fact of the matter is that parties want to get to the Security Council, with its "primary responsibility for the maintenance of international peace and security," promptly and without the necessity of first going through a tedious, time-consuming judicial proceeding.

Many countris have not accepted the jurisdiction of the Court, although reserving the right to accept it in a particular case. These countris include France, Italy, West Germany, Spain, Cuba, the Soviet Union, and the Soviet satellites. Countries that accepted the Court's jurisdiction, albeit with reservations, include Australia, India, Great Britain, and the United States.

Many countries of both categories have, when challenged to do so, expressly refused to consent to World Court Jurisdiction.

India refused to accept the jurisdiction of the Court on the claim of Pakistan that India had not returned prisoners captured during the war between those countries over the secession of Bangladesh.

France refused to accept jurisdiction over the demand by Australia and New Zealand that France stop nuclear testing in the South Pacific.

The Soviet Union has repeatedly refused to accept jurisdiction with particular respect to claims by the United States that the Soviet Union violated international law in various aircraft incidents. And the Soviet Union to this day has refused to comply with an advisory opinion of the Court, obtained by the General Assembly, ordering that it be required to pay its share of the United Nations costs for the Congo operation as assessed by the Court.

Moreover, the right to reject, wholly or partially, the jurisdiction of the World Court is consistent and parallel with the Great Power right to veto decisions of the Security Council. Both provisions were intended to ensure that the United Nations would at no time take action against the will of a Great Power. The Court has no enforcement machinery; its only remedy if a state does not comply with its judgment is to refer the matter to the Security Council (Article 49 of the Charter).