UNDERMINING THE RULE OF LAW
I. Weakening the International Court of Justice (“WORLD COURT”)
In 1945, at the conclusion of World War II, the United States helped to lead the world in adopting the United Nations Charter.1 In conjunction with adopting the Charter, the world community created the International Court of Justice (sometimes called the “World Court”).2 Under the UN Charter, the World Court is “the principal judicial organ of the United Nations.” All members of the UN are automatically parties to the treaty establishing the World Court. The Charter also provides that legal disputes among nations should generally be referred to the World Court. In the Charter, each member nation agrees to “comply with the decision of the International Court of Justice in any case to which it is a party.” Having played a significant role in creating the World Court, the United States, forty years later, took action to significantly weaken it – particularly with respect to the U.S. itself.
Article 36 of the treaty that established the World Court3 states that the court’s jurisdiction extends to cases referred to it by the state parties to a dispute. It also states that any member nation may file a blanket declaration (“Article 36 declaration”) accepting the compulsory jurisdiction of the Court in any case involving a legal dispute concerning treaties or international law filed against it by another nation that has submitted an Article 36 declaration. The treaty states that if there is a question concerning the court’s jurisdiction, the court itself shall resolve it. Shortly after the formation of the UN and the World Court, the United States and many other member nations filed Article 36 declarations broadly submitting to the compulsory jurisdiction of the court.
In 1984, Nicaragua filed a case against the United States in the World Court claiming the U.S. had violated international law by using force against Nicaragua. [See paper entitled “Crimes Against Peace” under “Articles” in this website.] The allegations of use of force included allegations of mining Nicaraguan harbors, attacking Nicaraguan oil facilities, attacking a navy base, arming and training a rebel force commonly referred to as “the Contras,” and other acts. The U.S., in the initial phase of the case, contended that the court did not have jurisdiction to decide such issues. The court found that it did have jurisdiction and, on the merits, that the U.S. had used force against Nicaragua unlawfully. After the jurisdictional ruling and before the Court proceeded to the merits, the U.S. withdrew from the case. The U.S. also revoked its Article 36 declaration, thereby terminating its general submission to the compulsory jurisdiction of the Court. As a result, unlike the first 40 years of the Court’s existence, since 1985, the Court no longer has jurisdiction over the U.S. unless the U.S. specially consents. This weakens and diminishes the World Court’s authority to apply and enforce the rule of law, particularly against the United States.
1 The complete UN Charter can be found at www.un.org.
2 Unlike the International Criminal Court (ICC), the World Court handles cases involving nations — not individuals– and has no criminal jurisdiction.