A Court Without Authority

When the U.S. denied the World Court jurisdiction over its actions in Central America, the State Department quickly called the step a "tactical litigation move, not a sign of disrespect for the court." But the effect of the U.S. decision was to expose the court's limited clout.

Officially known as the International Court of Justice, the body was chartered in 1945 as the judicial organ of the United Nations, with its seat at The Hague. Its mandate: to settle disputes beween nations and advise the U.N. on questions of international law. The court's 15 judges, each paid $82,000 a year, are of different nationalities and elected to nine-year terms by members of the U.N. The court is not widely viewed as partisan, but the Reagan Administration is leery of its ties to the General Assembly, which is dominated by Third World countries. In more than 37 years, the court has reviewed only 48 cases. Its successful arbitrations almost always involve such prosaic matters as fishing rights. In thornier conflicts, most nations are unwilling to submit to its rulings. More than two-thirds of the U.N.'s 158 members, including West Germany, Italy, the Soviet Union, China and France, do not grant the court full jurisdiction over their international dealings; generally they recognize the court's authority only when it suits their purposes. The U.S. recognized the court's "compulsory jurisdiction" in 1946, but Congress reserved the right to reject the court's participation in cases involving "domestic" issues. The Nicaraguan complaint, the Administration argued, fell within this capacious category.

There are precedents for last week's U.S. decision. In the 1950s, India, Australia and Britain refused to let the court arbitrate specific disputes. In 1970 Canada, fearing a lawsuit by the U.S. on marine pollution, told the court that it would not submit to any ruling on the matter. In 1973 France denied the court's jurisdiction when New Zealand and Australia charged that French nuclear tests in the Pacific violated international law. The Reagan Administration differed from past recalcitrants only in its timing. Says Richard Gardner, professor of international law at Columbia University: "I'm not sure there is any other case where a defendant country has pre-empted jurisdiction literally on the eve of the case."

Harvard Law Professor Abram Chayes, a leading member of Nicaragua's legal team, argues that America's recognition of compulsory jurisdiction requires that the U.S. give six months' notice before it can deny jurisdiction to the court. Says Chayes, who formulated the legal defense for the Kennedy Administration's blockade of Cuba in 1962: "You can't withdraw when the other fellow sues you."

The U.S. took a very different attitude toward the court in 1980, when it sought to censure Iran for holding American hostages at the U.S. embassy in Tehran. Noted Nicaraguan Foreign Minister Miguel d'Escoto Brockmann: "When Iran refused to participate, the U.S. took the position that the court should go right ahead. When we take this step, it is regarded as improper and propaganda." This inconsistency made many U.S. legal scholars uncomfortable. The respected American Society of International Law, holding its annual meeting in Washington, adopted a resolution deploring the Administration's attempt to sidestep Nicaragua's legal challenge.

The Reagan Administration insists that its legal maneuvering served only to preserve U.S. interests where the World Court could not. "The court, quite frankly, is not what its name suggests, an international court of justice," argues Jeane Kirkpatrick, U.S. Ambassador to the U.N. "It's a semilegal, semijuridical, semipolitical body, which nations sometimes accept and sometimes don't."