The Day After Russia Attacks
What War in Ukraine Would Look Like—and How America Should Respond
As John Foster Dulles wrote in 1957, "There can never in the long run be real peace unless there is justice and law. Peace is a coin which has two sides: one is the renunciation of force, the other side is the according of justice."1 World attention has too long been directed to one face of the coin at the expense of the other.
In attempting to build a structure for the organization of a peaceful world, the architects of the Charter of the United Nations put major emphasis upon peace-keeping and the renunciation of aggressive force in international relations. An animating principle of the Charter was that it pledged its members to forego the use of armed force save in the common interest or in self-defense, and to follow a policy of non-intervention in the affairs of other countries.
If that side of Mr. Dulles' coin does not shine brightly at present in the light of the aggressive tendencies of some nations, it cannot be said to have been because the Charter failed to lay explicit obligations upon its members to keep the peace. As we reflect upon the international instability that has been a feature of the sixteen years since the San Francisco Conference, it is difficult to avoid the conclusion that the lack of emphasis put on the duty to accord justice may have been a material contributing factor. Peace without justice is at best an uneasy truce. The price of peace without the means of obtaining justice may be excessive. If there is no reliable remedy for determining international disputes upon an objective and impartial basis, may it not be an illusion to suppose that a nation, suffering a serious wrong to its national interests, will forego the historic habit of using force?
Some might imagine that the members of the San Francisco Conference failed to appreciate that an effective means for achieving impartial judicial decisions was an essential component of the machinery for peace. Actually, they considered carefully the experience of the League of Nations in this regard; and in creating the International Court of Justice, they provided the needed instrument and assumed that nations would welcome and accept its jurisdiction. The Court was designated the "judicial organ of the United Nations," and the intention was that it should provide impartial justice as a substitute for political methods in resolving international disputes which are susceptible to judicial determination.
Unfortunately, membership in the United Nations did not involve compulsory acceptance of the Court's jurisdiction; each nation was left to decide this by its own voluntary action. All members of the United Nations are by Article 93, paragraph 1, of the Charter ipso facto parties to the statute of the Court. Article 36, paragraph 1, of the statute states that the jurisdiction of the Court comprises all cases which the parties refer to it, and in practice this is generally done by a "special agreement" of reference filed with the Court. Its jurisdiction also includes all matters provided for in treaties or conventions in force. A state may recognize that the jurisdiction of the Court is compulsory in all legal disputes in relation to any other state accepting the same obligation.
In these circumstances, only 37 of the 104 members of the United Nations have accepted the compulsory jurisdiction of the Court, and of these only 21 have adhered without significant reservations: Belgium, Cambodia, Republic of China, Colombia, Denmark, Dominican Republic, Finland, Haiti, Honduras, Japan, Lichtenstein, Luxembourg, the Netherlands, Nicaragua, Norway, Pakistan, Panama, Philippines, Sweden, Thailand and Uruguay. Conspicuously absent from the roll of nations which have accepted the Court's jurisdiction are the states of the Communist bloc and most of the new nations of Africa. Some nations of the free world have accepted the jurisdiction of the Court subject to qualifications which demonstrate their reluctance to submit to its authority. Some of their reservations are not of major moment, such as the provision in the declaration of certain British Commonwealth states that jurisdiction shall not include disputes with other members of the Commonwealth. Others may exclude from the Court's authority disputes arising prior to the declaration. The reservations most prejudicial to the Court's authority are those of Mexico, Liberia, Portugal, Union of South Africa, Sudan and the United States of America, which reserve to each the right to decide for itself whether a dispute is subject to the Court's jurisdiction. Under the reciprocity clause of the Charter even the nations which have accepted the Court's compulsory jurisdiction without reservation may deny it in particular cases by asserting any reservation made by the other party to the dispute.
The failure of numerous nations to accept the Court's jurisdiction, the crippling reservations of others and a general disposition by diplomats not to seek a Court decision have left the community of nations with less than a reliable judicial remedy for the redress of actual or fancied wrongs to national interests. Many controversies have arisen which might have been susceptible of impartial jural determination. Yet in the course of the last 16 years nations have obtained only 19 decisions from the Court, and these have been insufficient to enable it to make conspicuous contributions to the development of international law.
An area of judicial authority of considerable significance is the Court's recognized power to render advisory opinions on legal questions to the United Nations itself. Too little has been said upon this subject. Article 96 of the Charter provides:
The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.
Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.
The exercise of this power to obtain an objective Court judgment upon an abstract legal question may be decided by member states which are not themselves parties to the dispute. Even if one or both of the contending parties wish by reason of self-interest or national policy to avoid a judicial determination, the other member nations are not subject to the same inhibitions. Thus the Charter opens up a broad avenue of approach to the judicial process where a legal issue may be resolved free of political interests or dialectics.
In spite of this, few requests for advisory opinions have been made. As of January 1961, the General Assembly had submitted to the Court only 9 questions and the Security Council had submitted none. UNESCO has requested the Court for one advisory opinion under Article II, paragraph 2, of its Agreement with the United Nations, and this was rendered. All the other specialized agencies of the United Nations, with the exception of the Universal Postal Union, have been authorized by the General Assembly to request advisory opinions; but only the Inter-Governmental Maritime Consultative Organization has done so upon one occasion.
Each time a resolution to refer a case to the Court was being discussed, the objection was raised that such action would diminish the prestige of the General Assembly and that the issue in any event involved a political, not a legal, problem. Actually, any fear that the Court might attempt to resolve political problems should have been removed by the Court's own action. In each case where it has been contended that the question was political and not legal, the Court has declared that it is competent to answer legal inquiries only. Thus in its advisory opinion on the question of the admission of new members to the United Nations, it said:
The Court cannot attribute a political character to a request which, framed in abstract terms, invites it to undertake an essentially judicial task, the interpretation of a treaty provision. It is not concerned with the motives which may have inspired this request, nor with the considerations which, in the concrete cases submitted for examination to the Security Council, formed the subject of the exchange of views which took place in that body. It is the duty of the Court to envisage the question submitted to it only in the abstract form which has been given to it; nothing which is said in the present opinion refers, either directly or indirectly, to concrete cases or to particular circumstances.
And in its opinion of July 11, 1950, as to the international status of South West Africa, the Court flatly declared that it was:
. . . unable to deduce from [the general considerations drafted into the question submitted to it] any legal obligations for . . . states to conclude or to negotiate such agreements. It is not for the Court to pronounce on the political or moral duties which these considerations may involve.
The fact remains that nations have been reluctant to submit disputes to the Court by reason of their asserted belief that the disputes involved were political rather than justiciable. Even the mature nations of the Western world have often preferred to believe that an inherently jural issue, such as the interpretation of a treaty, represented in essence a political problem. In 1951, the General Assembly adopted a resolution against the United Arab Republic's interference with the use of the Suez Canal by Israeli ships. A preferable forum for decision would have been the Court, because even though its decision was not accepted (as happened in the case of the General Assembly resolution), it would have represented an objective authoritative judgment. In December 1960, the question was presented in the General Assembly whether certain member nations were obliged to participate in the cost of maintaining United Nations forces in the Congo. Although the question involved the interpretation of Article 43 of the Charter, no nation showed any disposition to refer the dispute to the Court. Just a year later, in December 1961, Acting Secretary General Thant announced that he would recommend to the General Assembly a resolution seeking such an opinion.
Now it is true that many controversies between nations do involve political issues not subject to judicial treatment (for example, the Kashmir boundary dispute between India and Pakistan) , and that only those of a legal nature can be expected to be determined by the judicial process. Nevertheless, even disputes of a political character may include an underlying or pertinent legal issue, such as the interpretation of a treaty, which, if impartially and authoritatively resolved, may contribute to the settlement of the larger problems. If massive national interests are involved in a legal issue, political considerations, of course, become associated with the problem; but that identification would not appear to change the basic legal character of the issue.
It does not appear that nations have seriously objected to the Court's authority because of the fear that its decisions may not be impartial, as has sometimes been true in the arbitration process. Elihu Root pointed out half a century ago that the great obstacle to the general adoption of arbitration was not an unwillingness of civilized nations to submit their disputes to the decision of an impartial tribunal, but rather an apprehension that the tribunal selected would not be impartial or would produce an expedient diplomatic adjustment.
Assuming that this criticism of arbitration has been valid, it does not explain the reluctance of nations of the free world to submit their justiciable disputes for consideration by the International Court of Justice. That Court, as well as its predecessor, the Permanent Court of International Justice, has had a consistent record of impartiality. Its opinions have been of such a high order as to compare favorably with those of distinguished appellate courts of the most mature judicial systems, and under the stringent tests of legal criticism its judgments have received the widespread approval of lawyers and legal scholars. Accordingly, any inherent weakness of the arbitration process may not be deemed applicable to the International Court of Justice and does not adequately explain the reluctance of nations to submit their disputes for determination by it.
The discouraging fact is that it is the just, not the unjust, decision, which is feared. Nations do not dread that the judicial process will produce an arbitrary or unsound decision but that it will develop the right one. If a nation believes that it has a sound, valid, legal position, it tends to welcome submission of a problem to the Court (unless its political implications seem too far-reaching) . But if a nation deems its legal or equitable position to be weak, its leaders shrink from the risk of an adverse decision. They prefer to keep the dispute alive, to write aide mémoires demanding redress, with the idea in mind that perhaps years later the unresolved controversy may have value as a bargaining factor in the settlement of some other dispute. As a consequence, cases which are voluntarily submitted to the Court are generally limited to those where both nations are reasonably confident of the validity of their respective legal positions; and these necessarily are few.
A dramatic illustration of the fear of a judicial decision is found in the failure of Great Britain and France to seek a decision of the International Court of Justice as to the legal right of the United Arab Republic to seize the Suez Canal. They insisted and doubtless believed that the seizure was unlawful because it violated treaty commitments; yet in spite of Nasser's formal acceptance of the jurisdiction of the Court they preferred not to risk a Court decision.
Historically, a principal reason why nations felt compelled to fulfill their treaty commitments or comply with established principles of international law has been the fear of armed retaliation. The effort to establish by treaty the doctrine of non-intervention and the denial by treaty of the use of force may now allow treaty obligations and accepted moral standards of conduct to be violated with impunity. As Sir Reginald Manningham-Buller wrote: "So one sees this very curious paradox: the very reluctance to employ force may lead to some nations which formerly would have feared to tear up treaties and repudiate obligations seeking now to do so. This in turn may lead to the conclusion that, if the rule of law is to be maintained throughout the world, such breaches of it cannot be permitted."2 Obviously it is not enough to restrain the use of force and intervention, for, without further action, the consequence can be a further deterioration in the acceptance and development of basic principles of international law.
By itself, the renunciation of force may uphold peace but perpetuate wrongs, may exalt self-restraint but sanction lawlessness and disorder. Merely to ban the only available sanction for wrongs and oppression tends to compound them. So the effort to restrain the use of force seems quixotic when not accompanied by effective provision for an alternative, peaceful remedy assuring redress for wrongs inflicted or obligations violated. If there is no peaceful remedy for a serious violation of national interests, the use of force by those possessing the power to exercise it may become compulsive regardless of treaty commitments. It may be suggested that nations possessed of conspicuous military power are not as free to exercise it as in the past because of the possibility that its use may lead to catastrophic nuclear war. If this be true, it merely emphasizes that strong nations have as much need as weak ones for the peaceful alternative of a judicial remedy for one category of claimed wrongs.
Article 33, Sec. 1, of the Charter of the United Nations provides: "The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." Unfortunately, the qualification that the dispute must be one that endangers international peace and security has opened a wide door to evasion. Even in cases when the commitment has been plain, members of the United Nations have often seemed undisturbed by its violation.
It has been proposed as a principle of international law that a state should not be the sole judge of the lawfulness of its own conduct in disputes concerning the interpretation of a treaty or a question of international law. The negative statement that a nation may not unilaterally determine the lawfulness of its own acts necessarily implies an obligation to submit those acts to judicial or arbitral determination. It is a challenging task for the free world to continue developing this concept until it has become firmly established as a principle of international law. One method would be to continue the negotiation of bilateral and multilateral treaties providing that international disputes of a juridical nature shall be submitted for decision to the International Court of Justice or a comparable tribunal. The most natural and obvious method is for nations to accept the Court's obligatory jurisdiction.
In the United States, Presidents Eisenhower and Truman and Secretaries of State Acheson, Dulles and Herter have urged this course; they urged repeal of the crippling Connally reservation attached to the act of adherence to the jurisdiction of the Court. In 1959, France abandoned a substantial reservation after the Court had ruled in the Norwegian Loan case that, under the reciprocity provision of the statute, Norway was entitled to invoke the French reservation, and that accordingly the Court had no jurisdiction of the controversy. In Great Britain sentiment seems to be changing in favor of repealing its reservations. If these nations should now decide to assert leadership in an area in which they have been conspicuous laggards, others in the free world who have been hesitating might follow suit. The United States has been so intensely preoccupied with the recurrent problems of the cold war that its policy-makers may have failed to show sufficient interest in developing institutions which will strengthen the organization of the free world. Their very concentration on countering Soviet political, economic and military aggression seems to have led them to neglect problems and controversies within the free world and to make only half-hearted efforts to develop more effective procedures for settling them peacefully and justly.
The International Court of Justice may be unable to solve massive international disputes because of their domestic or political features; but it does provide one element which is essential in a well-rounded community- a means for peacefully deciding questions of fact and law. And even though the judicial process cannot cure the major ills of the world, it can deal with contributing causes of those ills and, in the process, develop higher standards of justice among nations. Those countries which have participated in the development over the centuries of the traditions of the civil and common law should particularly comprehend the significance of that process and give it support. 1 "War or Peace." New York: Macmillan, 1957. 2 American Bar Association Journal, 1956, p. 1091.