Senator Moynihan and the World Court - Daniel Patrick Moynihan

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

There are a variety of reasons why the United States would not wish the World Court to adjudicate the conflict in Central America.

The judges of the World Court are elected by the Security Council and the General Assembly. not surprisingly, they reflect their UN constituency. It is doubtful, to use restrained language, that those judges from countries of the Soviet-Third World coalition and from that great majority of countries that distrust the United States--despite the good intentions of its foreign policy--would vote according to the merits of a case involving the Soviet Union, its satellites, or its allies.

Aside form the question of a fair hearing, the very competence of the Court to adjudicate an issue of the type presented by Nicaragua's complaint is highly questionable.

The Same Law for All

LLOYD CUTLER, counsel to President Carter and one of the few outstandingly able men in that Administration, recently addressed the American Society of International Law as follows:

How would the World Court go about making judicial findings of fact in the Nicaragua case? Is it going to subpoena the files of the CIA, or its opposite number in Nicaragua? Is it going to make on-site inspection visits to the guerilla camps in El Salvador, or Honduras, or Nicaragua itself? I submit that the UN Charter had good reason to consign issues like these to the Security Council. they are simply not justiciable.

Senator Moynihan accused Mr. Gerson of ignorance of "the history of our country" as well as ignorance of international law. One would have expected him then to cite World Court cases adjudicating issues of resort to force going back presumably to the Administration of President Washington, but at least to the creation of the World Court in 1945.

Neither Senator Moynihan nor Mr. Lewis refers to any such case for the good reason that there is none, not since 1789, 1945, or any other time. No state, not to mention any of the Great Powers, has allowed the World Court to adjudicate issues affecting its vital national-security interests. And in the only case remotely analogous--the Corfu Channel case--the UK submitted the controversy to the Court upon the Security Council's recommendation.

Although the United States is at a disadvantage in suits involving the Soviet Union, its satellites, and its allies, the United States nevertheless plans to appear before the Court to vindicate its withdrawal from the Court's jurisdiction. The brief for the United States is due August 17, and there will be oral argument at some later time.

Nicaragua's suit was apparently the bright idea of its legal counsel, Professor Abram Chaves of the Harvard Law School, who was legal advisor to the State Department in the Kennedy Administration. In that capacity he defended the legality of the Bay of Pigs. Oddly enough, Professor Chayes published an article in the Harvard Law Review in 1965 in which he belittled the usefulness of the Court in the settlement of international disputes even if legal issues were involved. He has spoken elsewhere to the same effect.