Social Education 58(7), 1994, pp. 417-419
National Council for the Social Studies
That it is out of sight and out of mind, and lacks noise or bloodshed, may explain but will not justify public or media lack of attention. Likewise puzzling is the absence of more than cursory reference in school curricula to an international institution that sits in a courthouse called the Peace Palace, paid for by a noted philanthropist Andrew Carnegie. Much credit for the creation of the Court can be attributed to such citizens and peace activists from the United States. Although the UN Charter says it established the Court, the UN "idea of an ordered society among states"1 was a result of much effort during the preceding century by lawyers from the United States in developing arbitration and international law as ways for resolving international disputes.
Origins of the Court
With much help from the Czar of all the Russias, those efforts culminated in the First International Peace Conference at The Hague of 1899, which took the important first step of institutionalizing arbitration. This conflict resolution mode lacked the capacity for building a body of law and precedent that a permanent court as a standing tribunal could offer. The U.S. delegation had pressed for such a body.
At a Second Hague Conference of 1907, President Taft's Secretary of State, Elihu Root, won approval in principle of an international court. The creation of such a permanent court failed only because of an impasse on the way judges were to be selected. But a later idea of Root's, inspired by a 1787 U.S. Constitutional compromise, was to break the earlier deadlock.
In the 1919 Versailles Treaty, which ended World War I, the U.S. idea of a court for global conflict resolution was launched.
Exciting, innovative days followed as members of the first international bench, each from a different country and trained in a variety of legal systems, worked on the creation of a new collegial body from 1920 to 1929. They had to fashion modes of dealing with each other, in multiple tongues, and handling the participation of advocates who were themselves emissaries of sovereign states. The result was an organic entity, a body with tradition and esprit de corps, which has been ongoing to this day.
After the Congressional rejection of Woodrow Wilson's League of Nations, it took the United States fifteen years to decide not to accept participation even in the Court. The United States reversed course at the San Francisco founding conference of the United Nations in 1945, where it was agreed that the Court (then known as the Permanent Court of International Justice) had functioned quite acceptably in handling the disputes that had been entrusted to it. The Court was reorganized, but many of the precedents, practices, and customs devised by the first judges in the 1920s were accepted.
Structure and Composition
The Court is composed of fifteen judges elected for a term of nine years. For the sake of continuity (just as in the United States Senate), the elections are staggered so that one third of the terms expire every three years. Nominations are not made by governments: instead, from the beginning this was entrusted to the national groups of qualified arbitrator-members of the so-called "Court" of Arbitration or ad hoc groups in states not represented there.
The mode of election is still similar to the one devised by Root in 1920: the UN's General Assembly and the Security Council vote separately and to win a nominee must secure an absolute majority of each. Not more than one of the fifteen judges may be a national of any one country. The Charter's idea that the principal legal systems of the world be represented has in general been accepted; for 1994-97, five of the six continents will have judges on the Court.
The judges elect their own Chief (called "president") for a term of three years, and vice president as well. A national of Algeria is president now, and Judge Stephen Schwebel of the United States is vice president. Their immediate predecessors were a Briton and a Japanese. All of the judges are elected as individuals; they do not represent their countries of origin, and they and those familiar with the Court do not use the phrase "French judge," but only "Judge of French nationality." Scholarly assessments of their voting records over the years indicate much less nationalistic partisanship in decision-making than some feared. It can be fairly said that their varying national origins have signified less than their shared concern for peace.
Named in the UN Charter as the "principal judicial organ of the United Nations," the Court was designed to be independent of the organization's other bodies and personnel. It was placed at The Hague in the Netherlands, when the League was at Geneva, Switzerland, to help to ensure judicial autonomy. Other Charter provisions offer other assurances of neutrality, in regard, for example, to matters in which the judges have participated or otherwise have an interest.
The Court has, since its 1921 inception, had two different major functions. The first is to decide disputes between states (only states may be parties to this Court's litigation) that involve legal elements. The other function, rare among U.S. states, is to render advisory opinions which UN bodies and designated agencies are authorized to request on legal questions that need to be answered to guide them in their work.
"The judicial process," promised at San Francisco in 1945 to "have a central place... for the settlement of international disputes,"2 cannot be said to have played such a role for the first forty years of the UN. Believers in the Rule of Law among nations devoted themselves to trying to explain why it did not happen; they were preoccupied with thinking up ideas for getting cases to the Court. By 1969, Secretary of State William Rogers, echoing President Eisenhower's call of a decade earlier for greater resort to the Court, called it "moribund," with no cases on its calendar as he spoke.
The Court marked "the 50th anniversary of the establishment of the international judicial system" in 1972, and then-President Sir Muhammed Zafrulla Khan delivered an address asserting firmly "the responsibility [for disuse] is not on the tools designed to preserve peace, but on the hands that shaped them, only to lay them aside."3
Though not often used until the 1980s, the Court was far from inactive and demonstrated, in the cases sent to it, what it could do. In the very first case in 1947, the question was whether Britain had a legal excuse for invading Albanian waters in the Corfu Channel, in order to obtain evidence about earlier minelaying that sank a British ship. The 14-2 ruling was that "the alleged right of intervention [was] manifestation of a policy of force, such as has in the past given rise to most serious abuse.
"Intervention is perhaps still less admissible in the particular form it would take here for, from the nature of things, it would be reserved for the most powerful states, and might easily lead to perverting the administration of international justice itself."4
During the years that followed, the modest demand on the Court's time did not prevent substantial performance in some areas. Rulings on aspects of the Law of the Sea were noteworthy. There were cases on fishing rights that importantly figured in ongoing treaty negotiations, on access to landlocked international waterways, and in some cases such as Libya/Tunisia, there were rulings affecting billions of dollars and access to energy for hundreds of millions of people. All were decided quietly, and peacefully, and complied with in every instance.
History was made when the Court took on a New Zealand/Australia lawsuit complaining of the environmental impact of nuclear explosions from tests in the South Seas by France. Although at first disregarding notice to appear at a hearing, when the Court was proceeding to take evidence on the merits, France announced termination of the tests; the Court dismissed the case as no longer having an object, and France never resumed. Currently, the Court will be considering a petition for an advisory ruling by the World Health Organization on the illegality of using nuclear weapons.
A number of advisory petitions came to the Court in the so-called years of "underutilization." More numerous than would permit fair description, they included several major rulings on Charter interpretation. One legitimized the authority of the General Assembly to finance "peacekeeping" operations. The decision was strenuously opposed by the Soviet Union and France. Its effect was to get around paralysis of the Security Council by vetoes on that subject.
Another area where advisories had significant effect was in decolonization. A series of rulings were issued, including one that prevented South Africa from annexing a former German colony for which it had been given a "mandate" by the League of Nations in 1919 (meaning, the responsibility to hold it in trust until the country was ready for self-rule). Rejecting the argument that the League being dead, the UN could not interfere, the Court made possible the ultimate freedom of Namibia.
In a 1980 decision the Court held that the disgraceful seizure of the Tehran hostages in U.S. diplomatic enclaves by "militant students" condoned by Iran was a treaty violation and directed that they be freed and reparations paid. The ultimate result was settlement of the damage claim and freedom of the hostages, as President Reagan took office.
With much the same membership that aided the United States against Iran, the Court was presented with Nicaragua's complaint against the United States for mining the harbors and financing the contras. The Reagan administration challenged-and litigated-the Court's authority to act. When it lost, it declined to defend the legality of its actions. The Court was obliged to consider the evidence itself. It made a ruling applying the principle of the Corfu Channel case forbidding forceful intervention.
Despite refusal of the Reagan administration to respect and comply with the ruling, the decision played a part in restoring peace to Central America. The Court's reasoning in holding the U.S. use of force inappropriate, and the support of its ruling by an international legal community including many in the United States, persuaded Costa Rica's President Oscar Arias to develop his Nobel Prize-winning plan for peace and convinced the other Central American presidents (even those who had supported or condoned the use of force by the United States) to accept it.5
The Tehran Hostages ruling and the Nicaragua decision mark a turning point of major significance in the Court's history. The trickle of cases of most of the first forty years was gradually, over the eighties, to become a flood. Gone are the days with no cases on its docket. By 1987, the year after the final Nicaragua decision, the number of cases had risen to seven, by 1993 to fourteen. There were many cases from every continent and on a variety of issues, from whether Denmark could build a bridge between two islands that would block Finnish ships to whether Australia could deal with Indonesia about prospecting for oil in waters off illegally occupied East Timor.
The future of the Rule of Law in reducing international conflict by force seems bright. Now at the UN's fiftieth anniversary, it may be possible that the San Francisco promise of 1945 that the Court would serve as a "beacon of Justice and Law" offering to substitute "orderly judicial processes for the vicissitudes of war and the reign of brutal force" may be realized.
1 Kuehl, Warren F. Seeking World Order: The United States and International Organization to 1920 (Nashville, 1969), 22.
2 Documents on the United Nations Conference on International Organization (UNCIO) San Francisco, 1945, 13 UNCIO 393.
3 (1972) Yearbook of the International Court of Justice, at p. 140. Text commencing p. 128 has useful summary of history from Washington's 1794 Jay Treaty, called "landmark."
4 Corfu Channel Case, I.C.J. Reports, 1949, at p. 35, as cited in Military and Paramilitary (Nicaragua) case, I.C.J. Reports 1986, at p. 107.
5 The complete story is told in a recent work by Joaquin Tascan, legal aide to President Arias of Costa Rica, The Dynamics of International Law in Conflict Resolution (Dordrecht, 1992), especially 201-203 and 224: Friday, August 12, 1994 "Thus the ICJ-produced knowledge became consensual among the five Presidents, which is to say that these Presidents either learned or nearly learned such knowledge by internalizing and reflecting it in their bargaining styles... Though the Presidents of the United States did not share in the consensus held by the five Central American Presidents, the multiple effects originating from the consolidation of the Court's decision among the Central American allies and within the U.S. domestic sphere of government and constituencies forced the U.S. toward adaptation."
Howard N. Meyer is a lawyer and arbitrator who is the author of numerous books and articles on civil rights and international legal issues. He has served as the NCSS 1st Alternate NGO Representative to the UN. A book of his on "The Century of the World Court" will soon be published.