Footnote to the Nuclear Test Cases: Abuse of Right--A Blind Alley for Environmentalists
In a recent article entitled "French Nuclear Tests and Article 41: Another Blow to the Authority of the Court," the author questioned the approach of the learned Judges of the International Court of Justice to article 41 of the Court's Statute. The title of that article was intended to deplore the recent tendency of States (most particularly France, but also Iceland) who are parties to the Statute of the International Court of Justice to arrogate to themselves the right to determine whether the Court has jurisdiction...
The judgment of December 20, 1974 is but one more example of the extremes of judicial innovation to which the International Court of Justice will resort to extricate itself from a difficult political situation. In this case the dexterity of the Court can only be admired. Both sides were able to claim a moral victory. But the Court is a judicial, not a political institution, and when such a result is achieved at the cost of a decision which is so clearly questionable as a matter of law one may legitimately inquire whether the Court is any longer performing a judicial function...
The Court's authority is not completely dead. Recent Resolutions by the United States Senate" demonstrate that there are some disputes which that body at least considers suitable for submission to the Court because they "affect neither the national security nor the vital interests of the parties concerned ... .One thing is certain however, the Court cannot expect that it will be called upon in the future to adjudicate anything of significance. By the judgment of December 20, 1974, the Court avoided involving itself in an area of international law that promises to be of increasing significance, i.e. international environmental law.
Jerome B. Elkind,
Footnote to the Nuclear Test Cases: Abuse of Right--A Blind Alley for Environmentalists,
9 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol9/iss1/2