The Day After Russia Attacks
What War in Ukraine Would Look Like—and How America Should Respond
THE United States of America and the Union of Soviet Socialist Republics, which had not given their support to the old World Court, will participate in maintaining the new one. The fact warrants hope for a significant advance in the pacific settlement of international disputes. Fifty states of the world now essay a fresh effort in a movement which has been in progress for a century and a half. In contrast with the Covenant of the League of Nations, the Charter of the United Nations ascribes a place of eminence to the World Court. The principal theme of the Charter is the maintenance of international peace and security, and the Court is conceived to have a rôle in the discharge of this function. It is therefore listed as one of the principal organs of the United Nations and characterized as its principal judicial organ. The Statute of the Court is made an integral part of the Charter. Hence all Members of the United Nations will, by the very fact of membership, be parties to the Statute.
The conception of the judicial process as one of the methods of bringing about the peaceful settlement of disputes does not exaggerate the part which a court may play. Experience has shown that judges on the bench, operating within the severe limitations of the judicial process, can deal effectively with certain types of disputes between states. So long as the disputants are willing to live within the law, a court can supply solutions which will bring an end to their controversy. To that extent, it can serve as a bulwark of friendly relations. If situations arise in which states wish to go outside the law, however, other agencies are needed, manned by men who are not restricted by judicial limitations, who are accustomed to gauging currents of public opinion, and who possess sufficient authority to bring about the results which the community interest may require.
An appreciation of this need led the framers of the Charter to charge the Security Council with primary responsibility for the maintenance of peace. The Court's contribution to that end will necessarily be less direct and perhaps less spectacular.
II. WHY A NEW COURT?
The draftsmen of the Charter had a great advantage over those who framed the Covenant in that they did not have to begin at scratch. The Permanent Court of International Justice, created in 1920, was at hand for their rebuilding. Its Statute had been ratified by 51 states, and almost all the states of the world (all save Nepal, Saudi Arabia, Vatican City and Yemen) had taken some part in concluding the hundreds of treaties which vested the Court with jurisdiction. It had functioned satisfactorily over a period of 18 years, from 1922 to 1940. Many of its cases had been of major importance; its decisions had commanded universal respect; and its jurisprudence had become a new storehouse of international law. It was indeed a world court, though its activity was largely confined to disputes of European origin.
The San Francisco Conference was faced with two alternatives, set out in the proposals emanating from Dumbarton Oaks. The Permanent Court of International Justice could be continued with such modifications of the Statute as would be required by the replacement of the League of Nations with the United Nations; or a new Court could be created, with a statute based upon that of the old one. The first alternative had commended itself to a large part of the legal profession. The American and Canadian Bar Associations had issued a joint statement on April 4, 1945, proposing the retention of the existing Court, stressing the need of continuity, and urging that the treaties and agreements relating to the Court's jurisdiction be preserved. In some measure, however, the latter objectives could be accomplished by action between states, even if a new court were created.
In choosing the second alternative, the Conference at San Francisco was moved by political rather than juristic considerations.[i] Precedents established in times of turmoil might have been invoked to justify taking over the old Court without the consent of all the states which had maintained it. The more orderly process would have been to introduce modifications in the existing Statute. But this would have required consent from every one of the member states, since no procedure had been agreed upon by which amendments could be adopted short of unanimity. This process might have entailed some delay, and it raised a problem regarding the participation in the new Court of some of the states which had been parties to the old Statute.
Of the 51 states which were parties to the Statute of the Permanent Court, three had ceased to exist and 15 others were not represented at San Francisco. The United Nations had no direct relations with the eight states which were arrayed against them in the war, and some of the neutral states were suspected of having given aid to enemies of the United Nations in the war. Moreover, some of the states represented at San Francisco were not parties to the 1920 Statute; and as the Statute was subject to acceptance only by members of the League of Nations and states named in the annex to the Covenant, they could not have become parties to it as things stood. Under these circumstances, the Conference thought that the simpler and more expeditious course was to say that the principal juridical organ of the United Nations should be a new Court, and that it should exist under a fresh Statute modelled on the old one.
This decision did not close the door to states not members of the United Nations, however. Such states may have access to the new Court as litigants on conditions to be laid down by the Security Council. They may become parties to the new Statute, and thus join in maintaining the new Court, on conditions to be determined by the General Assembly acting on the recommendation of the Security Council. As parties to the Statute, nonmember states may be permitted to participate in the elections of judges and in the adoption of amendments to the Statute. Under these circumstances, the new Court will not be exclusively an organ of the United Nations.
The creation of a new Court was, in reality, little more than a re-christening and a reorientation of the old one. The substitution of the name International Court of Justice for Permanent Court of International Justice had been foreshadowed in the Dumbarton Oaks proposals. The adjective "permanent" had served to distinguish the old Court from temporary tribunals which states are always free to create, but it has a prophetic ring which history tends to deaden. In some quarters, it was also thought that "justice" was too sweeping a word to be qualified by "international." Yet these rationalizations were not determining. Once a new Court had been decided upon, the change of name served merely as a device of convenience.
The Statute of the new Court is substantially the same as the one drawn up in 1920 and revised in 1929. To facilitate reference to past interpretation and application, the numbering of the articles has not been changed. Of the 68 articles of the old Statute, approximately 50 were retained either without any modification or with only formal or stylistic variations. Some of the changes were merely substitutions of the names of organs of the United Nations for those of the League of Nations. In some instances, deadwood was eliminated from the Statute, and in the light of experience some lacunae were filled. Apart from the addition of two articles on amendments, however, only a few innovations were introduced, and they did not disturb the economy and integrity of the former instrument.
In broad outlines, the chain of continuity has not been broken. The new Court will not differ from the old either in its composition, its organization, its jurisdiction, or its procedure. It will be able to profit from the solutions given in the past to the many practical questions which confronted the old Court. It may avail itself, to the limited extent possible in international jurisprudence, of the precedents established by the old Court and it will be in a position to carry on the same high tradition.
The International Court of Justice may, therefore, be said to be the successor of the Permanent Court of International Justice. The succession is expressly envisaged in a provision in the new Statute that, as between parties to the new Statute, treaties conferring jurisdiction on the existing Court shall be taken to confer the same jurisdiction on the new Court. As concerns states not parties to the new Statute, the succession must await the renegotiation of several scores of engagements. It now remains for the parties to the old Statute, a large majority of which were represented at San Francisco, to take the necessary steps for the liquidation of the old Court. The Preparatory Commission may make recommendations on the subject.
III. IMPROVEMENTS IN THE STATUTE
Does the new Statute incorporate any improvements? After the 18 years of experience, some were to be expected. It would be an exaggeration, however, to say that the improvements made are either very extensive or very significant. Both the Committee of Jurists at Washington and the Conference at San Francisco gave protracted consideration to the method of electing the judges. The difficulty of solving this problem had wrecked the effort to create a Court at The Hague in 1907. The difficulty was overcome in 1920 through the abandonment, by large states as well as small, of insistence on the representative character of the judges. The 1920 system of election has worked well, and there was general agreement at San Francisco that its main features should be kept. In the future as in the past, then, candidates will be nominated by national groups of jurists, not by governments, and each group will have the privilege of nominating both its own nationals and nationals of other countries. The dual system of election will be retained, with the General Assembly and the Security Council of the United Nations replacing the Assembly and the Council of the League. In both bodies an absolute majority of votes will be required in an election, and in the Security Council no distinction will be made for this purpose between the permanent and the non-permanent members. The single innovation will be the provision for staggering the nine-year terms of judges, so that five judges will be elected each three years. Each judge will continue to have a responsibility to the community of states, and not to the state of which he is a national.
The 1920 Statute provided for two special chambers of the Court, to deal respectively with labor cases and those relating to transit and communications. Neither of these chambers ever functioned, and there was no reason for continuing them. Instead, the new Court will be empowered to create chambers as need may arise, to deal either with particular categories of cases or with particular cases. Such chambers may even be regional in scope. This change, clearly based on experience, may lead to a wider use of the Court, though perhaps too much should not be expected in this regard.
The new Court, like the old, will be open only to states as litigants. The idea of opening it to individuals has often been discussed in recent years, but no proposal to that effect was made in the course of the revision of the Statute. The only change made in this connection was to amplify the privilege of public international organizations of furnishing information to the Court, and in some cases of receiving copies of the written proceedings.
The jurisdiction of the Court was the subject of an acrimonious debate in 1920. The debate was rehearsed in 1945 with emphasis on what had happened in the interval. The 1920 Statute was merely constitutive. It made the Court available to states desiring to use it, but did not obligate any state to submit to the Court's exercise of jurisdiction. A useful clause provided, however, that States desiring to do so might confer on the Court compulsory jurisdiction over certain types of legal disputes. From 1921 to 1940, a large number of States, 45 in all, opted to confer such jurisdiction on the Court as between themselves, in some cases for limited periods of time and in many cases subject to reservations. Some of the declarations are still in force. Moreover, numerous separate treaties concluded in this period conferred a limited compulsory jurisdiction on the Court. So remarkable was the progress thus achieved, that hopes were engendered that the way had been paved for further advance.
Many of the delegates at San Francisco, indeed a considerable majority, insisted that the Charter of the United Nations should obligate all of its members to submit to the Court's jurisdiction over legal disputes in which they might become involved. For this to be possible, obviously, all the participating states would have to be prepared to go that far. The delegations of some states, notably those of the United States and the Soviet Union, declared that their governments might have difficulty in taking such a step, and they urged that more substantial progress was to be expected if the option of the old Statute were continued. In deciding upon this course, the Conference also adopted a resolution urging states to proceed promptly to make declarations investing the new Court with compulsory jurisdiction. The new Statute therefore embodies the old provisions with respect to the option to confer jurisdiction. It adds that declarations made under the old provision, and still in force, shall be deemed, as between parties to the new Statute, to relate to the jurisdiction of the new Court.
The term "compulsory jurisdiction," employed in the Statute, is in some degree misleading. It means merely that a state which has accepted it is subject to the jurisdiction of the Court without the necessity of giving its consent in the particular case. In such a situation, the Court will be competent to give a judgment, whether the respondent "is present or absent," and the judgment will be binding on all states parties to the case. The term carries no implication as to the enforcement of the judgment.
Numerous suggestions have been current in recent years that provision should be made for the enforcement of Court judgments, and some of the proponents have even gone so far as to advocate that the power of enforcement should be conferred on the Court itself. An international tribunal has no sheriff, no marshal, no gendarmerie at its command. Its judicial function is exhausted when it has formulated the rights and duties of the parties before it in a judgment. As a matter of history, in the vast majority of cases states have complied with judgments handed down; the authority of the Permanent Court was never flouted by any losing state. If provision is to be made for the exceptional case, power to enforce should be vested in a political body, not a judicial one. This was appreciated in the drafting of the Covenant, which provided that "in the event of any failure to carry out an award or decision, the Council shall propose what steps should be taken to give effect thereto." Though that provision was invoked in only one case during 20 years, it may have had some psychological value in other cases. A similar power is now conferred on the Security Council.
No departure was made from the old Statute with respect to the law to be applied by the Court, though the new Statute states more explicitly that the function of the Court is to decide disputes in accordance with international law. The 36 articles of the 1920 Statute which relate to procedure were also taken over into the new Statute, with little more than verbal changes. They had been largely borrowed from the provisions in the Hague Convention of 1907, and they served merely as a basis for the Court's rules of procedure. No state appearing before the old Court ever raised objection to the procedure which was followed.
IV. ADVISORY OPINIONS
The League provision permitting the Court to give advisory opinions on any dispute or question at the request of the Assembly or the Council led to a considerable activity of the old Court. From 1922 to 1935 it gave 26 opinions, and once declined to give an opinion. Its exercise of this function gave general satisfaction; only in the United States was serious objection raised against conferring such a power on the Court, and this despite the fact that advisory opinions have a long-established place in Anglo-American legal history. No proposal to discontinue this advisory jurisdiction was made either before the Committee of Jurists at Washington or at the San Francisco Conference; on the contrary, a disposition to extend it was manifest.
The first question considered at San Francisco in this connection was where the power to make requests to the Court for advisory opinions should be lodged. The Dumbarton Oaks proposals contained a reference to the possibility of requests by the Security Council for "advice" on certain types of disputes only. A proposal by the Committee of Jurists that both the General Assembly and the Security Council should be authorized to request opinions on any legal question was adopted at San Francisco without hesitation. In some quarters it was desired to confer a similar power on international organizations; this was in line with a long-standing desire of the International Labor Organization. The final decision was that the General Assembly might authorize other organs of the United Nations, and specialized agencies, to make requests for opinions on legal questions arising within the scope of their activities. There was also some disposition to permit the parties to a dispute to make direct requests, but a proposal to this effect was not adopted.
The practice of the League of Nations failed to establish definitive rules with regard to the nature of the vote required for making a request for an advisory opinion, nor is the new Charter explicit on the matter. A decision by the General Assembly to request an advisory opinion was not classed among the "decisions on important questions" for which a two-thirds majority is necessary; but possibly that classification can be made later. In the Security Council, the request will require an affirmative vote of seven members; whether it is to be classed as a "procedural matter" is not too clear from the text of the Charter, and if it is not so classed, the affirmative vote must include the concurring votes of the permanent members of the Security Council. Where the proposed request relates to a dispute, however, it seems that parties to the dispute must abstain from the vote. The power of the Court to give advisory opinions is made more explicit in the new Statute, but no substantial change has been made in the procedure to be followed in advisory opinions. Now, as before, an advisory opinion is not to possess the binding force of a judgment. The procedure is judicial, but the opinion does not thereby lose its advisory character.
V. AMENDMENTS AND VERSIONS OF THE STATUTE
The 1920 Statute contained no provision for its amendment. This was the more striking because such provisions were inserted both in the League Covenant and in the Constitution of the International Labor Organization. When various amendments to the Statute were proposed in 1929, unanimous consent of the states which were parties to the Statute had to be sought; in consequence, the amendments did not take effect until 1936. The new Statute is a part of the Charter and can be amended by the same procedure required for the amendment of the Charter. This, however, is subject to the possibility that states which are parties to the Statute but not members of the United Nations may be permitted to participate in the adoption of amendments to the Statute. An amendment of the Charter must be adopted by a two-thirds vote of the General Assembly, or by a two-thirds vote of a general conference held to review the Charter, and must be ratified by two-thirds of the members of the United Nations including all the permanent members of the Security Council. An amendment of the Statute adopted and ratified in the same way might thus be binding even on states which fail to support it. Moreover, the Court itself may propose amendments. Some liberalization of the amendment process is thus achieved, and a lacuna in the 1920 Statute has been filled.
The texts of the Covenant of the League of Nations and of the 1920 Statute consisted of versions in English and French. While the use of two languages helped clarify the meaning of the text, the departure from the classic system of a single version in only one language immediately raised the question of using others. As the texts of the Charter and of the new Statute consist of versions in five languages -- Chinese, English, French, Russian and Spanish -- a more complicated situation may arise as discrepancies reveal themselves. Of course there are good reasons for all these versions. As a language of international intercourse, Spanish ranks almost equally with English and French. And if Chinese and Russian are less widely employed in diplomatic relations, each is the language of so many millions of people that, apart from any question of amour propre, its use would seem to be justified. English and French were employed as the working languages in drafting the Charter and the new Statute, and this fact may still give these versions some primacy for purposes of interpretation. In the work of the Court, English and French will continue to be employed as the official languages.
VI. THE PRESENT OUTLOOK
A remarkable advance was made in the field of judicial settlement of international disputes after the last war, and we are justified in believing that it can be continued after this one. The nations of the world are now generally agreed upon the nature of the judicial process. Full opportunity for each party to a dispute to present its contentions; careful weighing of the views of all the parties by trained, independent and impartial judges; judgment according to the applicable law of the international community -- these are everywhere admitted to be essential to adjudication by an international tribunal. Nor is general agreement lacking on the provenance of the law which such a tribunal should apply. In some measure, the law stems from custom and from the general principles which enshrine past wisdom; to a larger degree, it derives from treaties and agreements. The conclusion of conventional arrangements by states has been the outstanding feature of international relations during the past hundred years; indeed, at any given moment many thousands of treaties are in force. Not merely are they in force as a matter of law, they are also observed in daily life. For pacta sunt servanda -- the principle that agreements must be kept -- is more than a juridical concept. It is a moral precept which serves as the foundation for friendly relations among peoples. The holocaust of wars has not destroyed the world's treaty law.
The Charter now offers an opportunity for a revitalization of international law. International legislation, so greatly extended during the past quarter of a century, must now proceed at quickened pace, and it may push out in fields which have hitherto lain fallow. A resumption of the effort to codify parts of international law may also be in the offing. In the main, however, gradual rather than episodic progress must be our chief reliance. And just as courts have served to fill the interstices of the Anglo-American common law by broadening it from precedent to precedent, international courts may serve as catalytic agencies for shaping the international law of the future.
Here, then, lies the promise of the International Court of Justice. Eighteen years of experience with the Permanent Court of International Justice has paved the way for it. Most of the 50 states represented at San Francisco, including all of the countries which wield great influence in the world of today, will doubtless support it from the start, and ways should soon be opened for other states to collaborate. There need be no cause for discouragement if the time of the new Court is not over-occupied for a while. Much remains to be done before its jurisdiction will be as extensive as could be wished. Other courts may have to be created alongside it; and if states prefer to make use of temporary tribunals, so much the better.
If the peoples of the world are truly "determined to save succeeding generations from the scourge of war," the Court can be a powerful aid in that endeavor. It can furnish solutions of many international disputes which, if left to fester, might jeopardize the world's peace. Even a perfect tribunal will not serve this end, however, unless there be a willingness among men to seek justice and to abide by its dispensations. That willingness depends less upon the structure of the temple of justice than upon the spirit in which it is visited.
[i] The decision carried no implication of criticism of the old Court's record of achievement -- indeed, no criticism was expressed either at the preliminary meeting of a Committee of Jurists in Washington or at the Conference in San Francisco.