Document Type

Article

Disciplines

International Law

Abstract

In the course of withdrawing from proceedings instituted against it by Nicaragua before the International Court of Justice [ICJ], the United States government leveled sharply worded and uncompromising charges against the Court. It accused the Court of deliberately ignoring "irrefutable" evidence and law in deciding it had jurisdiction to try the case, and it came close to saying that the majority of the Court was so determined to find in Nicaragua's favor that no amount of evidence or pleading would dissuade them.

No more serious charges can be made about an adjudicative body than that its judgments are made in defiance of the evidence and the law: in essence, that it lacks integrity. It is unusual enough for the Court to be the object of such criticism. For the criticism to have been made publicly, by a government .that has long been one of the Court's principal supporters in the world community, is still more extraordinary, and hardly less so merely because the Court, by an overwhelming majority, had just rejected virtually all that government's arguments on a series of issues the government's lawyers had seriously believed were bound to be decided in its favor.

The government's charges have themselves been criticized, both publicly and privately, not least in this country.' It is generally assumed that they were motivated in large measure by domestic political considerations: to support the Reagan Administration's position that all the organs of the United Nations are infected with anti-Western bias;" to justify the decision taken in the White House to withdraw from the proceedings; and especially to mitigate the political damage anticipated when, as seemed inevitable, the Court ultimately decided in Nicaragua's favor on the merits of the case.

The timing of the charges, and the fact that some of the same lawyers who had participated in the case for the Government had more or less simultaneously been equally unsuccessful in pleading its Gulf of Maine case 6 before a five-judge chamber of the Court, leave one to wonder whether the decision to publicly challenge the Court's integrity might also have been inspired, or influenced, by sour grapes." One's professional instincts are to doubt that so unworthy a consideration would have contributed to a policy decision of such importance; but the possibility that it did cannot be ruled out entirely.

Whatever the explanation, the charges clearly upset members of the Court. Several referred to them in their individual opinions in the judgment on the merits of the case.' Privately, too, one hears, the charges continue to rankle. Well they should. If warranted, they strike deeply at the credibility of the Court as a judicial institution, as well as at the personal reputations of the members of the Court who are otherwise regarded as outstanding jurists. If unwarranted, on the other hand, they set a dismal precedent in allowing partisan zeal to overcome traditional standards of professional behavior.

It ill suits the interests of the international community, in any event, simply to dismiss the charges as an instance of politics as usual, of boys-will-be-boys. They call for more serious consideration, not least because they raise issues that go to the heart of what the International Court represents to the world community-in fact, what international law itself represents and whether the assumption that its norms can be administered impartially in an ideologically and culturally divided world is empirically sustainable.

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